How to Apply for an Exclusive Possession Order in Alberta

When a relationship ends and you and your partner cannot agree on who will stay in the home, Alberta has a court process to deal with it. That process is an application for an exclusive possession order. It can feel technical, so it helps to know the steps before you start.

This article walks through the filing process: who can apply, what the court can order, which forms are used, what it costs, and what happens after an order is made. It is general information, not advice on your situation, and a lawyer can confirm the details for your case.

This article covers the law of Alberta.

Who can apply

Exclusive possession orders are available to married couples and to adult interdependent partners who cannot decide who will stay in the home or keep certain assets at the time of separation. Violence does not need to be a factor.

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.

If the home is rented, the Residential Tenancies Act needs to be checked separately, because a tenancy can raise questions of its own.

What the court can order

On application, the Court may direct under the Family Property Act 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.

Only a court order can remove a spouse. The Act gives no self-help right to do it yourself. Until there is an order, speak to a lawyer before taking any step that affects access to the home.

What the court considers

In deciding on an exclusive possession order, the court considers the availability of other accommodation 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.

• Where each of you could realistically live instead, and what you can each afford.
• The needs of any children living in the home.
• Your finances.
• Who would be most inconvenienced, and the children's best interests.

Gathering information on these points before you file, such as housing costs and household income, usually makes your application clearer.

Forms, fee and where to file

Applications are filed in the Court of King's Bench, and the application fee is $200. The forms depend on your case.

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. Check whether this applies to you before you file.

After the order and what to do next

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

Where there is family violence and the situation is urgent, a different route exists. An Emergency Protection Order can be applied for from the Court of Justice without notice to the other party, and it can remove an offender from their home and prevent their return. A judge must review it within 9 working days.

• Confirm whether a divorce or property action has already started, so you use the right forms.
• Check whether the Family Justice Strategy applies where you live.
• Gather information on housing options, children's needs and finances.
• Have the $200 fee ready for filing.
• Speak with a lawyer about your situation, and with the Residential Tenancies Act in mind if the home is rented.

Frequently asked questions