How Property Is Divided on Separation Under Alberta Law

When a relationship ends, the home is often the biggest asset and the hardest decision. In Alberta, the Family Property Act sets the main rules for dividing property between spouses and adult interdependent partners.

This article explains the starting point, what is exempt, how the family home is treated, and the time limits. Every situation differs, so a lawyer can confirm how the rules apply to you.

This article covers the law of Alberta.

The starting point: equal 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, agreements and any other relevant fact.

Property is valued at the date of trial. The Court can order a spouse or partner to pay money or transfer an interest in property, or order that property be sold and the proceeds divided. When it orders a sale, it may also set terms and conditions for that sale.

If spouses or adult interdependent partners own land as joint tenants, the Court may sever the joint tenancy. A court order over jointly held land severs the joint tenancy once it is granted. A joint tenancy is one where, when an owner dies, their share goes to the other owners; in a tenancy in common it goes to that person's estate instead.

Exempt property

Some property is exempt from the equal division:

• Property acquired by gift from a third party or by inheritance.
• Property acquired before the marriage or before the relationship of interdependence began.
• Damages in tort awards, unless compensating a loss to both.
• Insurance proceeds not in respect of property.

The exemption is the market value at the applicable date. An increase in value of exempt property is distributed in a manner the Court considers just and equitable, not automatically equally.

Unmarried partners

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. The changes generally apply to couples who separate on or after January 1, 2020, and couples can opt out through their own property division agreement.

For unmarried partners the equal-sharing rule is set out separately but works in the same way for non-exempt property.

The family home and time limits

The Court can give one spouse or partner exclusive possession of the family home, direct that one be evicted, or restrain one from entering it, with conditions and time limits. It considers other accommodation within the means of both and the needs of any children living there. A possession order takes effect despite a later order for partition and sale of the family home.

If the home is owned, the order may be registered at Land Titles, after which the registered spouse may dispose of or encumber their interest only with written consent of the spouse in possession. A spouse or partner who starts proceedings may also file a certificate of lis pendens, and later instruments affecting the land are subject to that claim.

Gifting your home to a child during a breakdown carries risk: the Court may reach a transfer or gift made not more than one year before the application and order it returned.

Title, tax and other practical points

Changing who is on title is a separate step from dividing property. To add or remove a name, you use the Transfer of Land form, and it must be signed by all current registered owners. Where dower requirements apply and there is only one current owner, Land Titles notes that a dower option is needed, and adding a spouse to title is a transfer between married persons.

Tax can also matter. A gift of capital property to a spouse or common-law partner generally produces no capital gain or loss, although the transferor may elect out of that treatment in the return for the year of transfer. A family can designate only one home per year as a principal residence, and the sale and designation must be reported on the return. How this applies to you depends on your situation, so it is worth confirming with an accountant.

• Once proceedings start, household goods cannot be disposed of or encumbered without a court order or consent.
• If the home is a mobile home, a financing statement is registered in the Personal Property Registry instead of Land Titles.
• An ex parte order is possible if there is danger of injury to the applicant.

What to do next

• Write down the date you separated and note the 2-year deadlines.
• List all property and debts, and mark what you think is exempt, with proof.
• Gather title documents, mortgage statements and any agreements.
• Avoid transferring or gifting property without advice.
• Speak with a lawyer about possession of the home and whether to file a certificate of lis pendens.

Frequently asked questions