Do You Need a Separation Agreement in Alberta?

After a separation, many people wonder whether they must sign something formal. Others have a rough deal made over text and want to know if it is enough.

This article explains what Alberta requires, what an agreement can cover, and what can happen if you do not have one.

This article covers the law of Alberta.

Is a separation agreement required?

No. Alberta does not require a separation agreement. The government says you can write one yourselves but recommends speaking to a lawyer. A separation agreement is a contract between people who are separating or divorcing.

What "separation" means in Alberta

The Alberta government says there is no such thing as a legal separation in Canada. Married spouses or adult interdependent partners are separated when they end the relationship and live apart. Instead of a legal separation status, you can use a separation agreement, Family Law Act court orders (parenting, support, exclusive possession), Family Property Act orders for property, or a divorce under the Divorce Act.

Separation for one year is a ground for divorce. Under the Divorce Act, this is established when the spouses have lived separate and apart for at least one year immediately before the divorce is determined. The intention of one spouse counts toward the start date. Because the test turns on intention rather than on different addresses, spouses who still share a home can be treated as separated if at least one intends to live separately, though the evidence is a matter for the court.

There is an exception if you try to reconcile. The separation period is not considered interrupted if the spouses resumed living together for no more than 90 days in total with reconciliation as the primary purpose. Longer stays, or stays for other reasons, can break the period.

What an agreement can cover

• Children's living arrangements and parenting time.
• Child support.
• Spousal support.
• Property division.

Unmarried partners can also opt out of the default Family Property Act division by drafting their own agreement to divide property differently. For couples who separated on or after January 1, 2020, the same property division rules apply to adult interdependent partners as to married spouses.

Signing it properly

For an agreement dealing with property to be a compliant written agreement, each party must acknowledge in writing, apart from the other party, that they understand the agreement and the future property claims they give up, and that they sign it freely and without compulsion. That acknowledgement must be made before a lawyer other than the lawyer acting for the other party. Notarization is not the stated requirement.

Alberta's family law mandatory requirements package also says all parties should consider independent legal advice throughout the process. If you file a joint divorce with dependent children, the Court of King's Bench instructions for that kind of application ask whether a written agreement was made with independent legal advice, require the agreement to be attached as an exhibit to the affidavit, and require certificates of independent legal advice to be filed. Other kinds of divorce applications may have different instructions. Rules for parenting and support terms are different from property terms, and courts can review them, so ask a lawyer how they apply to you.

For adult interdependent partner agreements, the Adult Interdependent Relationships Act says an agreement is invalid if a party was induced by fraud, duress or undue influence, or lacked mental capacity, among other grounds. In plain terms, an agreement signed under pressure may not hold up.

Risks of having no agreement

Without an agreement, married spouses who separate but do not divorce are under Family Law Act rules, and spouses who divorce are under the federal Divorce Act. Property is then divided by the Family Property Act or a court. That can mean less control over the result.

• Property is valued, unless a compliant written agreement says otherwise, at the date of trial.
• Property deadlines can pass: generally 2 years after separation for spouses.
• Unmarried partners have a deadline running from when they knew, or ought to have known, the relationship ended.

Without an agreement, you may also disagree about who stays in the family home. Only a court order can remove a spouse, and the Act gives no self-help right. Exclusive possession applications are filed in the Court of King's Bench, and the order is temporary. These orders are available to married couples and adult interdependent partners, and violence does not need to be a factor.

Alberta also offers the Family resolution hub and the Family Justice Strategy, along with family mediation and parenting-after-separation programs, to resolve matters outside the courts.

What to do next

• List what you need to settle: parenting, support and property.
• Gather financial records and information about your property.
• Note your separation date and the property deadline.
• Get independent legal advice before signing anything.
• Consider mediation or the Family resolution hub if talks are stuck.

How all of this applies depends on your situation, including whether you are married or unmarried and when you separated, so it is worth confirming the details with a lawyer.

Frequently asked questions