What Are Your Rights If Your Spouse Changes the Locks in Alberta?

Coming home to find the locks changed is frightening and confusing. You may be wondering whether your spouse is allowed to do that, where you will sleep, and how to get your clothes, documents and children's things.

This article explains what Alberta's family property rules say about who can stay in the family home, which court orders exist, and what practical steps people commonly take. Your situation will turn on the facts, including whether you own or rent and whether anyone is unsafe.

This article covers the law of Alberta.

Can your spouse lawfully lock you out?

Under the Family Property Act, only a court order can remove a spouse from the home, and the Act gives no self-help right to do it yourself. In other words, one spouse deciding on their own to change the locks is not a step the Act provides for.

That does not mean the locks will be changed back by themselves. To get a clear answer about your rights to the home, you generally need to act, and a court order is the confirmed route. If the home is rented, the Residential Tenancies Act may also matter and is worth checking separately. How ownership, a lease or a joint name affects things depends on your facts, so a lawyer can confirm your position.

The court order that can get you back in: exclusive possession

On application, the Court can 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. These orders are available to married couples and adult interdependent partners who cannot decide who will stay in the home or keep certain assets at separation, and violence does not need to be a factor.

Be aware that an order can go either way. When deciding, the court considers whether other accommodation is available within the means of both spouses, the needs of children living in the home, and the parties' finances. Alberta guidance also says the decision depends on who would be most inconvenienced and on the children's best interests.

• The application is filed in the Court of King's Bench and the application fee is $200.
• 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.
• An exclusive possession order may be registered with the Registrar of Land Titles.

Which forms and processes apply

The forms depend on your case. If no divorce has started (or no partner property action is underway), you file a Claim – Family Law Act with the Statement – Exclusive Possession of Home-household Goods and an Affidavit of Service. If a divorce or property action is already underway, you use an Originating Application, an Affidavit and an Affidavit of Personal Service.

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. Because forms and steps are easy to get wrong, many people have a lawyer review the paperwork before filing.

If you are not safe: Emergency Protection Orders

In urgent family-violence cases, 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. Under the Protection Against Family Violence Act, 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.

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 must not be used to settle custody or access disputes. If you are in immediate danger, contact emergency services first.

What to do next

• Make sure you and any children are safe and have somewhere to stay tonight.
• Write down when and how you learned of the lockout, and keep any messages about it.
• List what you need back: identification, medication, children's items, work materials and financial papers.
• Gather proof of ownership or tenancy, such as a title, lease or mortgage statement, and details of the children's routines.
• Remember that the Family Property Act gives no self-help right to remove a spouse and only a court order can do that. How to handle getting back into the home depends on your situation, so talk to a lawyer before you act.
• Speak with a lawyer about whether to apply for exclusive possession, and about any property or parenting steps that should follow.

Retrieving belongings is a practical problem that the rules we have outlined do not spell out, so a lawyer can advise on options for your situation, including asking for access to be arranged in writing.

Frequently asked questions