Is There Such a Thing as Legal Separation in Alberta?

Many people in Alberta believe they must file a form or get a court document before they are "legally separated." It is a common worry, especially if you are trying to protect your home, your finances or your children.

The reality is simpler, and also more nuanced. This article explains what separation means in Alberta, how the dates work, and the tools people use instead of a legal separation status.

This article covers the law of Alberta.

No legal separation status exists

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.

So there is nothing to file to become separated. What you can do is use other legal tools, such as an agreement or a court order, to deal with the practical issues that follow a 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.

When does separation start?

Under the Divorce Act, spouses are deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart. This means one spouse's intention counts towards 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 of them intends to live separately. Evidence is a matter for the court. If this is your situation, it is worth getting advice about how to document your date.

What one year of separation means

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

For adult interdependent partners, the relationship ends when they have lived separate and apart for more than one year and one or both intend the relationship not to continue.

A short attempt to reconcile does not necessarily restart the clock. For spouses, the period is not interrupted if they resumed living together for periods totalling not more than 90 days with reconciliation as the primary purpose. Adult interdependent partners have a similar 90-day rule. Longer periods, or living together for other reasons, can break the separation period.

What people use instead of a legal separation

• A separation agreement, which is a contract between people who are separating or divorcing. It commonly covers parenting time, child support, spousal support and property division.
• Family Law Act court orders, such as orders about parenting, support and exclusive possession of the home.
• Family Property Act orders for dividing property.
• A divorce under the Divorce Act.

A separation agreement is not required in Alberta. You can write one yourselves, although the government recommends speaking to a lawyer. If you have no agreement, married spouses who separate but do not divorce fall under the Family Law Act, and spouses who divorce fall under the federal Divorce Act. Property is then divided under the Family Property Act or a court.

If you cannot agree on who stays in the family home, a court can be asked for an exclusive possession order. These are available to married couples and adult interdependent partners, and violence does not need to be a factor. The application is filed in the Court of King's Bench, the fee is $200, and the order is temporary. Only a court order can remove a spouse from the home.

To apply for a divorce in Alberta, either spouse must have been habitually resident in the province for at least one year immediately before the proceeding starts.

Why your separation date matters

A property proceeding between spouses on separation may be commenced within 2 years after the date the spouses separated. Where there is a divorce, the proceeding may be started no later than 2 years after the date of the decree nisi, declaration or judgment.

Adult interdependent partners are treated differently. They must start a property proceeding no later than 2 years after the date they first knew, or ought to have known, that they had become former adult interdependent partners. The property division rules that match those for married spouses apply only to couples who separate on or after January 1, 2020.

Unless a compliant written agreement says otherwise, property to be distributed is valued as of the date of the trial. For a property agreement to be compliant, each party must acknowledge in writing, apart from the other party, that they understand the agreement and the claims they give up, and that they sign freely. That acknowledgement is made before a lawyer who is not acting for the other party.

What to do next

• Write down the date you or your partner decided the relationship was over, and the date you began living apart.
• Note any periods of living together again, and why.
• Gather records of property, debts, income and anything you own jointly.
• Consider whether a separation agreement would suit your situation, and keep in mind that Alberta's family law package says it is important for all parties to consider independent legal advice throughout the process.
• Look into government options for resolving parenting, child support or divorce matters outside court, such as the Family resolution hub, the Family Justice Strategy, family mediation and parenting-after-separation programs.
• Speak with a lawyer early if a deadline may be approaching or if you are unsure which rules apply to you.

Frequently asked questions