Can You Force Your Spouse to Leave the House in Alberta?

When a home becomes tense after a relationship ends, it is natural to wonder whether you can simply ask your spouse to go, or make them. The law is more careful than that, and acting on your own can make things worse.

This article explains what Alberta law allows, when a court can order exclusive possession, and what is available if you are worried about your safety.

This article covers the law of Alberta.

Why you cannot decide this on your own

Under the Family Property Act, the court can direct that a spouse be evicted or restrained from entering the home. The Act gives no self-help right, so only a court order can remove a spouse.

That means you should not rely on changing the locks, removing belongings or similar steps as a way to push your spouse out. If you rent, tenancy rules may also matter, and a lawyer can help you check them.

When a court can order exclusive possession

On application, the court may direct that a spouse or adult interdependent partner be given exclusive possession of the family home, that a spouse be evicted, or that a spouse be restrained from entering or attending at or near the home.

These orders are for married couples and adult interdependent partners who cannot decide who will stay in the home or keep certain assets at the time of separation.

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

What the court looks at

The court considers whether other accommodation is available within the means of both spouses, the needs of children living in the home, and the parties' finances. Alberta guidance adds that the decision depends on who would be most inconvenienced and on the children's best interests.

• Could each of you realistically afford somewhere else to live?
• Where do the children live, and what do they need?
• What are each person's finances?

The order is temporary. It stays in place only until the couple or the court decides who stays in the home and how assets are divided. It may be registered with the Registrar of Land Titles.

If there is family violence

In urgent family-violence cases, an Emergency Protection Order can be applied for from the Court of Justice without notice to the other party. It can remove an offender from their home and prevent their return.

A judge must review an Emergency Protection Order within 9 working days, and a judge can replace it with a King's Bench protection order. Under the Protection Against Family Violence Act, it can give exclusive occupation of the residence for a specified period, whether the home is jointly owned or leased or owned or leased by one party only. It must not be used to settle custody or access disputes.

If you are in immediate danger, contact emergency services first. The legal steps can follow once you are safe.

How to apply and what to do next

Exclusive possession applications are filed in the Court of King's Bench, and the application fee is $200. The forms depend on your case. If no divorce or partner property action has started, you file a Claim - Family Law Act with the Statement - Exclusive Possession of Home-household Goods and an Affidavit of Service. If a divorce or property action is underway, you use an Originating Application, an Affidavit and an Affidavit of Personal Service.

In Greater Edmonton, Calgary, Red Deer or Grande Prairie, you may need to follow the Family Justice Strategy, which aims to resolve matters before court.

• Keep a record of events and any messages that show why living together is not workable.
• Think through where each of you could live and how the children would be cared for.
• Gather proof of income and housing costs.
• Ask a lawyer which forms apply to you before you file.
• If you feel unsafe, make a safety plan and ask about an Emergency Protection Order.

Frequently asked questions