Can Your Ex-Spouse Force a Sale of the Family Home in Alberta?

After a separation, the family home is often the biggest asset and the hardest decision. You may be on title, or you may not be. Either way, you may fear that your ex can force a sale before you are ready, or you may be the one who wants the home sold.

In Alberta, several laws can lead to a court-ordered sale, and several can also protect someone who wants to stay. This article walks through them in plain terms. The right answer depends on your facts, so treat it as a starting point.

This article covers the law of Alberta.

Two routes to a court-ordered sale

Under the Family Property Act, the Court may order a spouse or partner to pay money or transfer an interest in property. It may also order that property be sold and the proceeds divided, and it may set terms and conditions for the sale.

Separately, if you and your ex are both on title as co-owners, either of you may apply under the Law of Property Act for an order terminating the co-ownership. The Court may order a physical division, a sale with the proceeds shared, or a sale of one owner's interest to the other co-owners who want to buy it.

If you are both on title

Being on title together means the co-owner rules apply. Spouses are joint tenants only if the transfer says so. If joint tenants separate, the Court may sever the joint tenancy under the Family Property Act. A court order over jointly held land also severs the joint tenancy once it is granted.

On a court-ordered sale, if the highest offer is below the market value of the interest, the Court may refuse to approve it. The Court may also order compensation between co-owners, for example where one was excluded. Between spouses, a termination of co-ownership under Part 3 of the Law of Property Act is not a disposition under the Dower Act, and an order between two spouses dispenses with Dower Act consent.

If you want to stay in the home

The Court can give a spouse or adult interdependent partner exclusive possession of the family home. It can direct that one be evicted, or restrain one from entering or attending at or near the home, and it can set conditions and time limits. When deciding, the Court considers whether other accommodation is available within the means of both partners and the needs of any children living in the home.

A possession order takes effect despite a later order for partition and sale of the family home. Where the home is owned, the order may be registered with the Registrar of Land Titles, and after that the registered spouse may dispose of or encumber their interest only with the written consent of the spouse in possession. A possession order is not permanent ownership, so the question of dividing value remains.

How the home fits into property division

The Court distributes all property of spouses or adult interdependent partners. For property that is not exempt, it shall distribute equally unless that would not be just and equitable, considering factors such as contributions, income and earning capacity, liabilities and agreements. Property is valued at the date of trial.

Some property is exempt, such as property acquired by gift from a third party, by inheritance, or before the marriage or before the relationship of interdependence began. An increase in the value of exempt property is distributed as the Court considers just and equitable, not automatically equally.

• An adult interdependent partner is someone who has lived with the other in a relationship of interdependence for a continuous period of at least 3 years, or with some permanence if there is a child, or who has signed an adult interdependent partner agreement.
• For spouses, an application for property division may be commenced within 2 years after the date of separation, or within 2 years after the divorce judgment or declaration of nullity.
• For adult interdependent partners, an application for property division must be made not later than 2 years after the applicant first knew, or ought to have known, they were former partners.
• As an exception to those time limits, if a partner has transferred or intends to transfer substantial property to a third party, or has made a gift, to defeat a claim, the time limit for applying is the earlier of 2 years or one year after the property is transferred or given.

What to do next

Act early, because time limits apply and some protections depend on timing. A spouse or partner who starts proceedings under the Family Property Act may file a certificate of lis pendens with the Registrar of Land Titles, and later instruments affecting the land are then subject to that claim. Once proceedings start, household goods cannot be disposed of or encumbered without court order or consent.

• Get a current copy of title and confirm whether you are on it and how it is held.
• Write down the date of separation and the date you began living together.
• Gather mortgage statements, tax bills, and records of who paid for what.
• Do not transfer or gift the home to a family member without advice, as the Court can reach gifts made not more than one year before an application commenced.
• If the home is a mobile home, ask about registration in the Personal Property Registry, which applies instead of Land Titles.
• See a family lawyer promptly about possession, sale and division, and check your mortgage terms with your lender.

Frequently asked questions