Can You Be Separated While Living Under the Same Roof in Alberta?

Many Alberta couples decide the relationship is over but cannot afford to move out, or want to stay for the children. If that is you, you may wonder whether you can really count as separated while you still share a kitchen and a mailbox.

The short answer is that it can be possible, but it depends on the facts. This article explains how the rules generally work, why the separation date matters, and what to consider if living together stops being workable.

This article covers the law of Alberta.

There is no formal legal separation in Canada

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.

Instead of a status, you use tools. These include a separation agreement, Family Law Act court orders (such as parenting, support or exclusive possession), Family Property Act orders for property, or a divorce under the Divorce Act.

Intention matters more than addresses

Under Divorce Act s. 8(3)(a), 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 from the other. The intention of one spouse counts towards the start date.

Because the test turns on intention rather than different addresses, spouses who still share a residence can be treated as separated if at least one of them intends to live separately. Evidence is a matter for the court, and the Act does not list required evidence.

Because a court weighs the evidence, it can help to keep a simple record of when and how the relationship ended, such as messages or changes in how you handle money and household tasks.

How this affects the one-year divorce ground

Separation for one year is a ground for divorce. 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 proceeding is determined.

A court in Alberta can hear a divorce if either spouse has been habitually resident in the province for at least one year immediately before the proceeding starts.

Trying again does not necessarily restart the clock. The separation period is not considered interrupted if the spouses resumed living together for a period, or periods totalling, not more than 90 days with reconciliation as its primary purpose. There is also an exception where a spouse became unable to form or keep the intention to live separate and apart, and the court thinks the separation would likely have continued otherwise. Longer cohabitation or cohabitation for other reasons can break the period.

Unmarried partners and property deadlines

An adult interdependent relationship includes living with another adult for 3 years, or less than 3 years if you have signed an Adult Interdependent Partner Agreement or have a child together. Partners cease to be adult interdependent partners when they have lived separate and apart for more than one year and one or both intend the relationship not to continue. A brief reconciliation of not more than 90 days with reconciliation as its primary purpose does not interrupt that period.

The separation date also matters for property. A property proceeding between spouses on separation may be started within 2 years after the date the spouses separated. Where there is a divorce, the proceeding may be started not later than 2 years after the date of the decree nisi, declaration or judgment.

For adult interdependent partners, the 2 years runs from when the applicant first knew, or ought to have known, they had become a former adult interdependent partner, not simply from the separation date. The rules giving them the same property division as married spouses apply to couples who separate on or after January 1, 2020.

When living together becomes unworkable

Under the Family Property Act, the Court may, on application, 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. The Act gives no self-help right to remove a spouse; that takes a court order. Whether other steps, such as changing locks, are allowed depends on your situation, so it is worth confirming with a lawyer first.

• Applications are 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.
• These orders are available to married couples and adult interdependent partners who cannot decide who will stay in the home, and violence does not need to be a factor.
• 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.

If there is family violence and the situation is urgent, 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 it within 9 working days.

If your home is rented, how this applies depends on your situation, so it is worth confirming with a lawyer.

What to do next

• Write down the date you or your spouse decided the relationship was over.
• Keep a record of any periods when you lived together again, and why.
• Note the 2-year property deadline that may apply to you.
• Consider a separation agreement; Alberta does not require one, but recommends speaking to a lawyer.
• If safety is a concern, seek protection right away rather than waiting.

Family mediation and parenting-after-separation programs are also offered through the government's Family resolution hub and Family Justice Strategy. A lawyer can help you confirm your separation date and plan next steps.

Frequently asked questions