Who Gets to Stay in the Family Home After Separation in Alberta?

The family home is often the biggest asset and the place where your children feel settled. Right after separation, many people ask the same thing: who gets to stay, and for how long?

The short answer is that it depends on your agreement, your children's needs and, if you cannot agree, what a court decides. This article explains the main paths in plain terms so you know what to ask a lawyer.

This article covers the law of Alberta.

Separation does not need 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.

Under the Divorce Act, spouses are treated as living separate and apart for a period when they lived apart and either of them intended to live separate and apart from the other. Because the test turns on intention rather than on different addresses, spouses who still share a residence can be treated as separated if at least one of them intends to live separately.

Instead of a legal separation status, people can use a separation agreement, Family Law Act court orders (including exclusive possession), Family Property Act orders for property, or a divorce under the Divorce Act.

How the home fits into property division

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 under the Family Property Act or by a court.

Unless a compliant written agreement says otherwise, the date used to value property that will be distributed is the date of the trial. Because the home's value can change, that date can matter, so ask a lawyer how it applies to your situation.

How a particular home is shared depends on facts such as ownership, when it was acquired and what each person contributed. Those details are worth confirming with a lawyer rather than assuming.

Exclusive possession: a court order about the home

If you cannot decide who will stay in the home, the Family Property Act lets a court make an order on application. The court may 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 the time of separation, and violence does not need to be a factor.

In 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 says the decision depends on who would be most inconvenienced and on the children's best interests.

The order is temporary. It 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 also be registered with the Registrar of Land Titles.

Agreeing on the home yourselves

A separation agreement 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 one, and the government says you can write one yourselves but recommends speaking to a lawyer.

If the agreement deals with property, the Family Property Act sets conditions for it to count as a compliant written agreement. Each party must acknowledge in writing, apart from the other, that they understand the agreement and the future property claims they give up, and that they sign it freely and without compulsion. The acknowledgement must be made before a lawyer other than the lawyer acting for the other party.

What to do next

• Write down who owns or rents the home, who lives there and who looks after the children day to day.
• Collect documents about the home, such as title or lease, mortgage statements and recent bills.
• Note the date you separated, since a property proceeding between spouses on separation may be commenced within 2 years after the date the spouses separated.
• If you are an adult interdependent partner, ask about your own deadline, which runs from when you first knew or ought to have known the relationship ended.
• Consider mediation or the Family resolution hub and Family Justice Strategy, which are government options for resolving some matters outside the courts.
• Speak to a lawyer before you agree to anything about the home, because giving up property claims can be hard to undo.

Frequently asked questions