When Does Separation Start Legally in Alberta?

Many people are not sure which day their separation began. Was it the day one of you moved out, the day you said the relationship was over, or some later date?

The answer matters because several time limits run from it. This article explains how Alberta approaches the start date, what can interrupt it, and why you should settle on a date early.

This article covers the law of Alberta.

There is no formal legal separation in Alberta

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. You do not file anything or get a certificate to be separated.

What people call a legal separation is usually one or more tools used afterwards: a separation agreement, Family Law Act court orders, Family Property Act orders, or a divorce under the Divorce Act.

How the start date is worked out for spouses

For a divorce, spouses are deemed to have lived separate and apart for any period during which they lived apart and either of them intended to live separate and apart from the other. So the intention of one spouse counts towards the start date, even if the other disagrees.

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 decided.

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, and the Act does not list what evidence is required.

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

What can interrupt or reset the clock

• Getting back together for a period, or periods totalling, no more than 90 days, with reconciliation as the main purpose, does not interrupt the separation period.
• Living together for longer, or for reasons other than reconciliation, can break the period.
• If a spouse becomes unable to form or keep the intention to separate, the period is not interrupted where the court thinks the separation would likely have continued.

If you have tried to reconcile, keep a simple note of dates, because the 90-day limit is counted in total.

A legal adviser acting for a spouse in a divorce must point out the parts of the Divorce Act aimed at reconciliation and discuss the possibility of reconciliation with that spouse, so expect that question to come up.

Why the date matters for divorce, property and partners

For adult interdependent partners, the relationship ends after they have lived separate and apart for more than one year and one or both intend it not to continue. A brief reconciliation of no more than 90 days with reconciliation as its main purpose does not interrupt that period. Because these rules differ, a lawyer can confirm which deadline applies to you.

The property rules for adult interdependent partners that match those for married spouses only apply to couples who separate on or after January 1, 2020. An adult interdependent relationship can include 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. Unless a compliant written agreement says otherwise, property to be distributed is valued as of the date of the trial.

Separation agreements and other options

A separation agreement is a contract between people who are separating or divorcing. Common topics are parenting time, child support, spousal support and property division. Alberta does not require one; you can write one yourselves, though the government recommends speaking to a lawyer.

For an agreement dealing with property to count as a compliant written agreement, each party must acknowledge in writing, apart from the other, that they understand the agreement and the claims they give up, and that they sign it freely. That acknowledgement must be made before a lawyer other than the one acting for the other party.

• Without an agreement, married spouses who separate but do not divorce are under the Family Law Act rules, and spouses who divorce are under the federal Divorce Act.
• Alberta's Family resolution hub and Family Justice Strategy are government options for resolving parenting, child support or divorce matters outside the courts.
• Alberta's family law mandatory requirements package says it is important to consider independent legal advice throughout the process, including before any alternative dispute resolution.

What to do next

• Write down the date you or your partner decided the relationship was over and the date you started living apart.
• Note any periods you lived together again and why.
• Keep messages, emails or other records that show the intention to separate.
• Find out early which start date applies to your property deadline: the separation date, the decree nisi, declaration or judgment after a divorce, or, for adult interdependent partners, when you first knew or ought to have known the relationship ended.
• Speak to an Alberta family lawyer before the dates are in dispute.

Frequently asked questions