Does Moving Back In Together Reset the Separation Clock in Alberta?

You separated, then decided to give things another try. Now it has not worked out, and you are wondering whether the months you spent apart still count toward a divorce or the end of your relationship.

The answer depends on how long you lived together again and why. This article explains the main rules in Alberta in plain language, including the special rule for adult interdependent partners and why your separation date matters beyond divorce.

This article covers the law of Alberta.

How the one-year separation rule works

Alberta's 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. The date is therefore a matter of fact, not a status you apply for.

For a divorce on the ground of marriage breakdown, the Divorce Act says the ground is established when the spouses have lived separate and apart for at least one year immediately before the divorce proceeding is determined.

Spouses are deemed to have lived separate and apart for any period when they lived apart and either of them intended to live separate and apart from the other. So one spouse's intention 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 what proves that is a matter for the court.

The 90-day reconciliation exception for spouses

Trying again does not automatically wipe out your time apart. The separation period is not considered interrupted or ended if the spouses resumed living together for a period, or periods totalling, not more than 90 days with reconciliation as its primary purpose.

The exception has limits. Living together for longer than that, or for reasons other than reconciliation, can break the separation period. If that happens, the one-year count may need to start again from a later date.

• Up to 90 days in total, mainly to try to reconcile: the period is not interrupted.
• More than 90 days in total: the period can be broken.
• Living together mainly for another reason, such as convenience: the period can be broken.

When a spouse loses the ability to form the intention

There is a separate exception for a spouse who became unable to form or keep the intention to live separate and apart, or to continue it by choice. The separation period is not interrupted if the court thinks the separation would likely have continued otherwise.

This is a narrow situation and it turns on the facts. If it may apply to you, a lawyer can explain how it could fit your circumstances.

Adult interdependent partners follow a parallel rule

For adult interdependent partners, the end of the relationship depends on how long you have been apart and on your intentions, so the exact date is worth confirming with a lawyer. Under the Adult Interdependent Relationships Act, partners cease to be adult interdependent partners when they have lived separate and apart for more than one year and one or both intend the relationship not to continue.

A brief reconciliation of not more than 90 days, with reconciliation as its primary purpose, does not interrupt that separation period.

An adult interdependent relationship in Alberta includes living with another adult for 3 years, or less than 3 years if you have signed an Adult Interdependent Partner Agreement or have a child together.

Why your separation date matters beyond divorce

Under the Family Property Act, a property proceeding between spouses on separation may be started within 2 years after the date the spouses separated. Where there is a divorce, the proceeding may be started not later than 2 years after the date of the decree nisi, declaration or judgment.

Adult interdependent partners have a different clock. They must start a property proceeding not later than 2 years after the day the applicant first knew, or ought to have known, that they had become a former adult interdependent partner, not simply from the separation date. The property division rules for adult interdependent partners that match those for married spouses only apply to couples who separate on or after January 1, 2020.

Because deadlines can depend on an uncertain separation date, it helps to settle early on when you separated and to keep records of what happened.

What to do next

• Write down the date you or your partner first intended to live apart, and the dates of any time spent living together again.
• Note why you lived together again, for example a genuine attempt to reconcile.
• Keep track of the total number of days if you reconciled more than once.
• Check any property deadline that may apply to you, as some run from separation.
• Speak with a lawyer before relying on a particular separation date, especially if you lived together again for close to or more than 90 days.

A lawyer acting for a spouse in a divorce proceeding must draw the spouse's attention to the provisions of the Divorce Act that aim at reconciliation and discuss the possibility of reconciliation. That is a standard step and does not mean you are expected to reconcile.

Frequently asked questions