How Do You Move Out With Children After Separation in Alberta?

Leaving the family home with your children is a big step, and many parents worry about doing it wrong. Whether you need the other parent's agreement or a court order depends on your circumstances, so it is worth getting advice before you go.

This article explains the options Alberta provides, how the family home is handled, what to do if safety is a concern, and practical ways to keep conflict down.

This article covers the law of Alberta.

Separation does not need a legal step

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.

For a divorce, spouses can be treated as separated even if they still share a home, if at least one of them intends to live separate and apart. That can matter if moving out is not yet possible.

Agreement or court order?

Instead of a legal separation status, parties can use a separation agreement, Family Law Act court orders (parenting, support, exclusive possession), Family Property Act orders for property, or a divorce under the Divorce Act.

A separation agreement is a contract between parties who are separating or divorcing, and common topics include children's living arrangements and parenting time, child support, spousal support and property division. Alberta does not require one. You can write one yourselves, but the government recommends speaking to a lawyer.

Whether the other parent must consent before you move with the children, or whether you should first seek a court order, depends on your family's facts and any existing agreement or order. Confirm this with a lawyer before you act.

If you or the children are not safe

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.

• An Emergency Protection Order must be reviewed by a judge within 9 working days, and a judge can replace it with a King's Bench protection order.
• 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.

Who stays in the family home

If you and your spouse or adult interdependent partner cannot agree on who stays, only a court order can remove a spouse, because the Act gives no self-help right. On application, the Court may direct exclusive possession of the family home, evict a spouse, or restrain a spouse from entering or attending at or near the home.

The court considers other accommodation within the means of both spouses, the needs of children living in the home, and the parties' finances. Alberta guidance says the decision depends on who would be most inconvenienced and the children's best interests. Violence does not need to be a factor.

The application is filed in the Court of King's Bench, the application fee is $200, and the order is temporary. 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. If the home is rented, other tenancy rules may matter, so ask a lawyer.

Avoiding problems: what to do next

Alberta's Family resolution hub and Family Justice Strategy are government options for resolving parenting, child support or divorce matters outside the courts, and family mediation and parenting-after-separation programs are offered. Alberta's mandatory requirements package says it is important to consider independent legal advice throughout the process, including before any alternative dispute resolution.

• Get legal advice before you move, especially about the children.
• Try to agree on a parenting plan in writing, ideally with a lawyer's input.
• Keep communication calm, brief and in writing where you can.
• Keep records of the move, expenses and any agreements reached.
• Consider mediation or a parenting-after-separation program.
• If anyone is unsafe, seek urgent protection rather than waiting.

If your agreement deals with property, it must meet specific requirements, including a written acknowledgement made before a lawyer other than the lawyer acting for the other party.

Frequently asked questions