Who Pays the Mortgage and Bills After Separation in Alberta?

After a separation, the bills do not stop. The mortgage, the power and gas, the internet, the credit cards and the joint bank account all keep arriving, and it is often unclear who is expected to cover what while you sort out the bigger questions.

This article explains how Alberta frames separation, which tools exist for dividing property and deciding who stays in the home, and the time limits to watch. How a particular debt is shared depends on what you signed and your finances, so a lawyer can confirm your own position.

This article covers the law of Alberta.

Separation in Alberta is about how you live, not a legal status

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 can be treated as separated even if you still share a residence. For divorce purposes, the test turns on the intention to live separate and apart rather than on different addresses, so at least one spouse intending to live separately can be enough, though evidence is a matter for the court.

This matters for bills because the date you separated can affect time limits and other steps later. It is sensible to keep a note of when and how the relationship ended.

What decides who pays the mortgage and bills

Who pays what after separation depends on your situation, so it is worth confirming with a lawyer. In practice, the answer usually starts with the contracts you signed. Each mortgage, line of credit or utility account is its own arrangement with a lender or company, and how your separation affects it depends on the terms you signed, so it is worth confirming with a lawyer or accountant. Check whose names are on each one.

Between the two of you, the cost of carrying the home can be addressed in a separation agreement, which is a contract between people who are separating or divorcing. Common topics include children's living arrangements and parenting time, child support, spousal support and property division.

Alberta does not require a separation agreement. You can write one yourselves, though the government recommends speaking to a lawyer. 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.

• Gather recent mortgage, utility, credit card and bank statements.
• List which accounts are joint and which are in one name.
• Note who has been paying each bill and from which account.
• Keep records of any payments you make from now on.

If you cannot agree: court tools and rules

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. Property is then divided by the Family Property Act or a court.

Instead of a legal separation, the options Alberta lists are 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.

Unless a compliant written agreement says otherwise, the date used to value property that is to be distributed is the date of the trial. Because values and balances can change, ask a lawyer how that may affect a home and its mortgage.

Who stays in the home while this is sorted out

If you cannot decide who will stay in the home, the court may direct that a spouse or adult interdependent partner be given exclusive possession of the family home, or that a spouse be evicted or restrained from entering the home. Only a court order can remove a spouse. The Act gives no self-help right.

These orders are available to married couples and adult interdependent partners, and violence does not need to be a factor. The court considers whether other accommodation is available within the means of both spouses, as well as the needs of children living in the home and the parties' finances.

The application is filed in the Court of King's Bench, the application fee is $200, and the order is temporary, staying in place only until the couple or the court decides who stays and how assets are divided. If the home is rented, the Residential Tenancies Act should be checked separately.

Time limits and what to do next

A property proceeding between spouses on separation may be started within 2 years after the date they separated. Where there is a divorce, the proceeding may be started no later than 2 years after the date of the decree nisi, declaration or judgment.

Adult interdependent partners are different. They must start a property proceeding no later than 2 years after the date the applicant first knew, or ought to have known, they had become a former adult interdependent partner. The updated property rules for these partners apply only to couples who separate on or after January 1, 2020.

• Write down your separation date and how you are living now.
• Collect statements for every mortgage, loan, account and bill.
• Keep paying essential bills where you can, and keep proof.
• Consider a separation agreement and independent legal advice.
• Ask a lawyer about time limits before they near.

Frequently asked questions