Immediate Issues for All Separating Couples

Law

Couples who are separating have many questions at the start. See the sections below to learn more about:

  • Making temporary arrangements for you and your children
  • What it means to live “separate and apart”
  • Financial matters when separating
  • The basics of child support and partner/spousal support
  • Deciding who will live in the family home
  • An introduction to solving your separation issues out of court
  • An introduction to going to court to deal with your separation issues

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: May 2016
Who is this Information Page for?

This Information Page has law-related information about things to consider when first separating from your partner or spouse, or if you are considering separating. Whether you were married or not, there are issues that all separating couples have to deal with. This Information Page will introduce you to some things to think about, and will direct you to more detailed information when necessary.

In general, the law and process on this Information Page is about couples who live in Alberta. Although some topics may apply to all separating couples, much of the law around the breakdown of romantic relationships is different in each province. If you are not sure if you “live” in Alberta (for example, if one of you divides your time between Alberta and another province) see the Family Breakdown and Out-of-Province Issues Information Page.

You are currently on the Law tab of this Information Page, which has information on what the law says in Alberta. There is also important information in the Common Questions and Myths tabs above.

The law and legal system are complex: this will take a while. Be sure to give yourself enough time to read the information below, understand how it applies to your situation, and know what actions you may need to take.

What the words mean

These words are not listed alphabetically—they are in the order that makes it easiest to understand the complete legal picture.

If you are looking for a specific term, you can use the Glossary, which is in alphabetical order.

spouse

A person who is legally married to another person.

“common-law” partner

In Alberta, the term “common-law” only applies to certain couples and only for certain federal laws (such as the Income Tax Act). Under most federal laws, the term “common-law” refers to a couple who has lived together in a romantic relationship:

  • for at least one year; or
  • for less than one year but they have a child together.

Under Alberta’s provincial laws, there is no such thing as “common-law” partners and “common-law” relationships. In Alberta, similar rights and responsibilities come from being in an “Adult Interdependent Relationship” (see below).

Be Aware

Under the federal Indian Act and the federal Family Homes on Reserves and Matrimonial Interests or Rights Act, the term “common-law” is used only for a couple who has been living together in a romantic relationship for at least one year (regardless of whether or not they have had a child together).

Adult Interdependent Relationship (AIR)

The term used in Alberta to describe what many people might think of as a “common-law” relationship.

A person is in an Adult Interdependent Relationship if he or she has been living with and in a “relationship of interdependence” with another person:

  • for 3 years; or
  • for less than 3 years if they have signed an Adult Interdependent Partner Agreement (see below); or
  • for less than 3 years if they have a child together (by birth or adoption).

A “relationship of interdependence” is a relationship where the partners are not married but they:

  • share one another’s lives;
  • are emotionally committed to one another; and
  • function as an economic and domestic unit.

The relationship does not have to be romantic or sexual to meet these requirements; it can be non-romantic (also called “platonic”). However, on this Information Page, we will only deal with the breakdown of romantic relationships. For information about ending a non-romantic AIR, see the Ending a Non-romantic Adult Interdependent Relationship Information Page instead.

Adult Interdependent Partner (AIP)

A person who is in an Adult Interdependent Relationship with another person (see above).

Adult Interdependent Partner Agreement (AIPA)

A written contract in which 2 adults agree to become Adult Interdependent Partners. That contract must be in the form required by the Alberta Adult Interdependent Partner Agreement Regulation—see the following resource.

PDF Adult Interdependent Partner Agreement Regulation
Government of Alberta
English

“best interests of the child”

The factors that parents, guardians, and/or the Court must consider when making decisions about a child. The best interests of the child “test” is made up of many considerations that focus on the well-being of the child.

For example:

  • the physical, psychological, and emotional safety and well-being of the child;
  • the child’s need for stability, taking into consideration the child’s age and stage of development and attachment;
  • the child’s history of care;
  • the child’s cultural and religious background; and
  • for older children, the wishes of the child.

conjugal

A word used to describe a relationship—a “conjugal relationship” means the people involved have sex. This is also called a “romantic relationship.” This is different from a “platonic relationship,” which is a relationship of any kind that does not include having sex.

cohabitation

Living together in the same home.

cohabitation agreement

A contract created by 2 or more people who live together, or are about to live together, but are not married (and not planning on getting married in the near future). In this agreement the parties can address many issues, such as:

  • how bills will be divided between the parties;
  • whether one party will pay partner support to the other if they were to separate; and
  • how property will be divided between the parties if they were to separate.

jurisdiction

A particular government’s right, power, or authority to make laws. The Government of Canada has “federal jurisdiction.” The laws made by the Government of Canada apply to everyone in Canada. On the other hand, the provinces and territories of Canada have “provincial jurisdiction.” The laws made by those governments apply only within that province or territory. The exact topics that each jurisdiction can make laws about is set out in Canada’s Constitution Act, 1867.

separation

When a couple (married or unmarried) decides to live apart from each other because their relationship has broken down.

party

Any person involved in a dispute. It can also refer to each of the people who sign a contract.

third party

In court processes, this term refers to someone who is not directly involved in a legal disagreement, but who is affected by the results of the dispute. For example: in family law cases, the bank who gave the mortgage on the family home is a “third party.” However, on this website we also use the term “third party” to refer to people who are not directly involved in a legal disagreement but are connected to it in some other way. For example: two people who are separating might hire a mediator to help them resolve their issues—that mediator will be called a “third party.”

exclusive possession

The right of one spouse or partner to have sole possession of the home the spouses/partners once shared (which means that the other spouse or partner cannot continue living there). This can also include household goods.

matrimonial home

The home where the spouses normally lived together. Although there may be more than one matrimonial home during a marriage, there can only be one matrimonial home at a time. This term does not apply to non-married partners.

The laws that may apply to you

As you work through your separation issues, you may wish to read the laws (also called “statutes” or “acts”) that apply. In some circumstances, the law is the same for both married and non-married people. However, in other circumstances, the laws are very different.

This Information Page is meant to be an introduction to the topics you will need to consider when separating or divorcing. Below, you will be referred to other Information Pages that have more in-depth legal information about specific separation and divorce topics. All of the individual laws related to those topics will be listed on those Information Pages.

If you think you have a chance of saving the relationship

If you are still only considering separation, you may also be considering trying to save the relationship. In fact, it is quite common to consider both at the same time. It is not a bad thing to look at all of your options and prepare yourself for different possible outcomes. Separation is not easy—if it happens, you will want to be at least a bit prepared.

For more information about being in this in-between stage, see the following resources.

Web Divorce
Student Legal Services of Edmonton
English
See “Should I Get A Divorce?”

Web Can I Do My Own Divorce?
Self-Counsel Press
English
See “Do You Really Want to Divorce?”

Web Separation and Divorce
Canadian Mental Health Association
English

Web Are You Avoiding Divorce Because Your Family “Stays Together?”
Fine & Associates Professional Corporation
English
This is a private source. Learn more here.

Video Hold It: The implications of putting your family law matters on hold
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.

For information about dealing with the financial issues that come up during a relationship and after a relationship ends, see the following resource.

If there has been family violence

Has there been any domestic abuse in the family—whether it was toward you, the children, or both? It is very important to recognize and admit this, both to yourself and to any organizations you approach for help. Everyone involved must be kept safe. Also, family violence is often a critical factor in what happens in family law proceedings. If there was violence against the child, it could even dictate how you must proceed.

If you have been the victim of domestic violence, some things to keep in mind:

  • Be honest and upfront about it. Violence does not go away on its own. See the What is Family Violence? Information Page for more information.
  • It is never your fault. The responsibility belongs only to the abuser.
  • There is no single right way to proceed—it will depend on the exact details of your case. Sometimes, mediation and other collaborative processes may not be possible. On the other hand, sometimes going to family court may not be the best option. Learn about Family Violence and the Legal Process.
  • There are criminal laws and protective laws that might be able to help.
  • Abusive situations are complicated. Consider talking to a lawyer (or another person who is helping you with your legal issues) about the best way to proceed. See the Community Legal Resources & Legal Aid and Working with a Lawyer Information Pages for more information about your legal options.
  • Do not just believe an abuser who has told you that “You can’t leave me” or “You’ll get nothing”: it is not up to the abuser, it is a question of law. Keep reading to find out more.

As a last thought, remember that abusive situations are very complicated. There are both legal and social services that may be able to help you.. See the Family Violence: Resources to Help Information Page.

General safety

If you have not yet left a violent situation, but are planning to do so, it is critical that you remain safe during the process. You will need to make a “safety plan.” For more information, see the Safety Planning Information Page.

Be Aware

If you have to leave suddenly and need to go back to get a few personal belongings, the police can escort you. For more information, see the Family Violence: Resources to Help Information Page.

If you have children

If you have children and are leaving an abusive situation, there are some specific things that are important to know from the beginning.

  • As a starting point, under law, both parents have guardianship of their children and both parents have rights to see those children.
  • Some people believe that if one parent has been abusive to a child, that abusive parent would not be allowed to keep guardianship of the child. That is not necessarily the case. Similarly, some people believe that if one parent has been abusive to a child, that child will not have to spend time with the abusive parent. Again, that is not necessarily the case. The Alberta court system always places a high value on contact with both parents. It is very rare that a parent will not be granted parenting time (even if the parent is in jail). There are options available to help keep both you and the children safe, such as supervised access. These and other concepts are explained on the Guardianship & Parenting under the Family Law Act Information Page and the Custody & Access under the Divorce Act Information Page.
  • As a result of family violence, a non-abusive parent may be tempted to just take the child, leave the area, and not allow any contact with the other parent. Even though this may seem like a solution, it can lead to legal problems. A parent who takes the child in this way may be criminally charged. If a parent removes and hides a child under the age of 14 from the other parent, without that parent’s consent, it is a crime. This is called “parental abduction.” Even if the child is over 14, the parent could still be in legal trouble. This could then lead to more problems later on. In the end, it may even place you and the child in greater danger. There are other options available to help keep both you and the children safe. More information about parental abduction is on the Guardianship & Parenting under the Family Law Act Information Page and the Custody & Access under the Divorce Act Information Page
  • As a result of violence against the child, the non-abusive parent may decide to call Child Protective Services (CPS). CPS has a duty to investigate any reports of abuse. However, in general, once separation has occurred, if one parent reports the other parent for child abuse, Child Protective Services may view the matter as a “custody dispute” and prefer that it be dealt with through the family law court system. This is a very important fact to keep in mind.

For more information about children involved in family breakdown due to domestic violence, see the following resources.

Presentation Overview of Family Law
YWCA Canada
English

Web Kids
Centre for Public Legal Education Alberta
English

Web Domestic Abuse and Your Legal Rights
Student Legal Services of Edmonton
English
See “Family Law Issues.”

PDF Parenting After Separation (PAS) Parent's Guide
Government of Alberta
English
See p. 22-23.

PDF Live Safe — End Abuse: Parenting
Legal Services Society
Chinese, English, Farsi, French, Punjabi, Spanish
This resource is from outside Alberta. Learn more here.

When protecting yourself can go wrong

In situations of physical violence, it is natural to try to physically protect yourself. This can result in “hitting back.” Although this may be natural, it can cause big problems. Specifically, if the police are called, you could be charged with a crime (such as assault). Even just a slap (as we might see in a movie) can result in an assault charge. If you are charged with assault, it can make your family issues much more complicated and can cause a great deal of difficulty.

Protective orders

If you are in danger, you may be able to get a “protective order.” A protective order is a court order that instructs a person to stay away from and stop harassing or abusing another person for a fixed period of time.

There are several different kinds of protective orders, one of which (especially the Emergency Protection Order) can be granted very quickly. For more information, see the Protective Orders Information Page.

If you rent: Breaking your lease without penalty

Leaving an abusive relationship often means that you must leave the home you shared with your abuser. If you signed a lease for the home, you may be concerned about your legal responsibilities if you leave.

Alberta’s Residential Tenancies Act has recently changed to allow victims of abuse to break their lease early, without a financial penalty. To do this, you must give your landlord a certificate from the Alberta government’s Safer Spaces Processing Centre. The Safer Spaces Processing Centre can give you this certificate if you give them one of the following:

  • a copy of a protective order from a court (such as an Emergency Protection Order, Queen’s Bench Protection Order, restraining order, or peace bond); OR
  • a letter from a “certified professional” confirming that you or your children are in danger.

For more information about who is a “certified professional” and other rules that apply, see the following resources.

PDF Renting and Domestic Violence: Ending Your Lease Early
Centre for Public Legal Education Alberta
English

Web Safer Spaces certificate to end tenancy
Government of Alberta
English


PDF Information for Tenants
Government of Alberta
English
See p. 12.
The federal Divorce Act & the Alberta Family Law Act: What is the difference and why does it matter?

On this Information Page, you may be directed to other Information Pages on this website that will discuss a specific topic in more detail. Often, you will see that at least two Information Pages appear to deal with the same issue. For example: “Child Support under the Divorce Act” and “Child Support under the Family Law Act.” These are not the same things—they refer to different laws.

As you work through the issues involved in the breakdown of your relationship, you will have to make a choice about which law you must use, or want to use.

Specifically:

  • For support and parenting issues, married couples have a choice which law they use when they separate: they can use Canada’s Divorce Act, or Alberta’s Family Law Act. The choice of which law to use is extremely important. If you are not sure which law you want to use, see the Ending a Married Relationship Information Page, which explains what to consider when choosing.
  • Non-married couples do not have a choice. The law that applies to couples who were not in a married relationship is the Alberta Family Law Act. If you were not married, Canada’s Divorce Act (as well as Alberta’s Matrimonial Property Act) does not apply to you.

If you are not sure if you were married or not, see the Getting Married Information Page.

If you have a domestic contract (cohabitation, pre-nuptial, or marriage agreement)

A domestic contract can include a cohabitation agreement (for unmarried couples), or a pre-nuptial or marriage agreement (for soon-to-be married or married couples).

In general, if you and your partner have a domestic contract and you separate, you must follow the terms of that contract to settle the legal issues that come up. In other words, usually you must obey the contract.

However, that is not always the case. For example, the agreement may be challenged if:

  • You or your partner provides a legal reason that the agreement should be cancelled or “set aside.” For example, if you can prove that one of you did not understand the contract because of something that was going on when the agreement was made. Or, if one of you did not provide full financial disclosure to the other.

  • One or more parts of the agreement are not enforceable. For example, you may have included an agreement that no child support would be paid. This is not allowed. It should not have been agreed to, and it will not be honoured. This is because child support is the right of the child.

Also, you would still have to deal with any legal issues that were not covered in the agreement.

For more information about how domestic contracts are treated and the law around setting them aside, see the Relationship Breakdown if You Had a Domestic Contract Information Page.

You can agree

Sometimes, a separation can come as a bit of a surprise. Perhaps your partner has just told you that he or she is leaving. Maybe it is you who is ready to leave. This can be scary and overwhelming. That is natural.

Although it may not seem like it right now, you can come to an agreement with your ex-partner. Going to court is not a requirement.

There is more information about coming to an agreement, as well as other non-court options, in the “Out of court resolution options” section below.

Temporary arrangements are possible

The thought of separation can be overwhelming: there are so many things to think about, so many things to resolve, and so many plans to make. However, you do not have to do all of that right now.

Whether you come to an agreement on your own or have to involve a court, you can start with temporary solutions. You do not have to decide about the rest of your life right now, or even in the next month. Temporary (“interim”) arrangements can be made.

There is more information about making temporary arrangements on the Information Pages about each topic. See the recommended Information Pages below, or find your topic on the Family Law Topics page.

Slow down if you can

If at all possible, try not to make rash decisions. Taking time to think and plan can save you trouble later on.

The following resources provide information about things to consider. Some information is given in the context of the end of a marriage, but many things also apply to ending a non-married relationship.

Video Episode 203- The Break Up - Family Matters TV
AdviceScene (via YouTube)
English
This is a private source. Learn more here.

Video How do I protect myself during separation? - Divorce Planning
AdviceScene (via YouTube)
English
This is a private source. Learn more here.

Web Setting the course for a positive relationship after divorce
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Preparing for a divorce can make the process easier
Kirk Montoute LLP
English
This is a private source. Learn more here.


Web Are you making any of these divorce mistakes? Part 1
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Are you making any of these divorce mistakes? Part 2
Kirk Montoute LLP
English
This is a private source. Learn more here.

Video Hold It: The implications of putting your family law matters on hold
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.
Learning about the law is not easy

Learning about the law is never an easy thing. There is no way to give you all of the information that you will need in just a few paragraphs. The law is complex, and there is much information to get through. It will take some time and effort—and a lot of reading—for you to learn about all of the words and legal concepts that will apply to you. It is also important to remember that everyone’s circumstances are different: what applies to someone else may not apply to you.

Take the time to learn about the law that applies. It is important. The decisions you make will affect almost every aspect of your life, and may continue to do so for quite some time to come. You may wish to do your research in stages, a little bit at a time. And you do not necessarily have to do this alone. Consider talking to lawyer (or legal advocate) about your options and how best to proceed. See theCommunity Legal Resources & Legal Aid and Working with a Lawyer Information Pages for more information about your legal options.

For more information about general things to consider when leaving a relationship, see the following resources. Some information is given in the context of the end of a marriage, but many things also apply to ending a non-married relationship.

Audio/Web Your Rights when you Separate
Calgary Legal Guidance
English

Audio/Web Cohabiting Relationships and Adult Interdependent Partners
Calgary Legal Guidance
English

Web Divorce and Separation
Government of Canada
English

PDF Moving On: A Practical Guide for Women Leaving a Relationship
Government of Prince Edward Island
English
This resource is from outside Alberta. Learn more here.

Video How do I protect myself during separation? - Divorce Planning
AdviceScene (via YouTube)
English
This is a private source. Learn more here.

Video Episode 203- The Break Up - Family Matters TV
AdviceScene (via YouTube)
English
This is a private source. Learn more here.

Web Getting separated or divorced
Government of Canada
English

French resources:

Web Divorce et séparation
Government of Canada
French

PDF Aller de l’avant: Guide pratique à l’intention des femmes qui décident de mettre fin à une relation
Government of Prince Edward Island
French
This resource is from outside Alberta. Learn more here.

Web Se séparer ou divorcer
Government of Canada
French

For more detailed information on financial issues in particular, see the “Financial issues” section below

Know what kind of relationship you were in

When romantic partners are living together, any rights and responsibilities that come from moving in together are defined differently by different governments. For the federal government, rights and responsibilities start after living together for 1 year; in some provinces it takes 2 years; and in others it takes 3 years. Or, rights and obligations can start after certain events, such as having a child together or getting married. These rights and obligations vary greatly across Canada.

It is important that you understand what kind of relationship you were in, as the laws that will apply to the breakdown of your relationship will depend very much on the kind of relationship that you were in. Each of these relationships are described in further detail just below.

In Alberta, the different kinds of relationships are:

  • living together for less than one year with no children together;
  • “common-law” partners under Canadian law, but not yet in an “Adult Interdependent Relationship” under Alberta law;
  • in an Adult Interdependent Relationship under Alberta law; or
  • married.

Living together for less than one year with no children together

If you live together for less than one year, and do not have a child together, your relationship has no legal “status.” You do not qualify as “common-law” partners under federal law. Similarly, if you do not have a child together, or have not signed an Adult Interdependent Partner Agreement, you do not qualify as Adult Interdependent Partners under Alberta law.

If this is the case, during the period of time that you were together, you could not take advantage of any of the benefits of being “common-law” (under federal law) or “Adult Interdependent Partners” (under Alberta law). Now that you are separating, you do not have any of the obligations or responsibilities that come with being “common-law” or “Adult Interdependent Partners.”

There are no laws that specifically address the breakdown of your relationship. Although there might be specific relationship breakdown laws in other provinces or countries that would apply to your relationship, this is not the case in Alberta. In other words: when your relationship ends, you are not entitled to apply for partner support or division of property.

However, although there is no law specifically addressing the breakdown of this kind of relationship, all other general law applies. For example: what the law says about owning things in “joint tenancy” or having a “joint debt” still applies. For that reason, please review the sections about financial issues below.

Be Aware

Every province has a different law about living in a “marriage-like” relationship without getting married. Just because your relationship may previously have been recognized as some kind of “marriage-like” relationship in another province or country does not mean that you are “common-law” partners or “Adult Interdependent Partners” in Alberta.

Common-law partners

Under federal law, you become “common-law partners” (also called “unmarried spouses”) after one year of living together in a romantic (or “conjugal”) relationship. As a result, for federal purposes (such as filing taxes), your “marital status” becomes “common-law.” This happens no matter where you live in Canada, as federal laws apply to all Canadians, including Albertans. You also become common-law partners when you have a child together (including adopting a child together), even if you haven’t been living together for a year yet. Once you are in a “common-law” relationship, you and your partner are treated very much like married spouses for many federal issues (including tax benefits).

A couple may be considered “common-law” under federal law, but may not meet the requirements to be in an “Adult Interdependent Relationship” under Alberta law—see the next section for information about those requirements.

In Alberta, when you have only federal “common-law” status, there are no laws that specifically address the breakdown of your relationship. Although there might be such laws in other provinces or countries, this is not the case in Alberta. In other words: when your relationship ends, you are not entitled to apply for partner support or division of property.

However, although there is no law specifically addressing the breakdown of this kind of relationship, all other general law applies. For example: what the law says about owning things in “joint tenancy” or having a “joint debt” still applies. For that reason, please review the “Financial issues” section below.

For information on what exactly you need to do to “end” your common-law relationship, see the “If you were not yet in an Adult Interdependent Relationship” section of the Ending a Non-married Romantic Relationship Information Page.

In an Adult Interdependent Relationship

In Alberta, the kind of relationship that most people call “common-law” is called an “Adult Interdependent Relationship” (AIR). However, an AIR is different than a common-law relationship under federal law, or other similar relationships in other provinces:

  • In Alberta, you are not automatically in an “Adult Interdependent Relationship” after living together for one year: it takes 3 years of living together unless you have a child together or enter into an Adult Interdependent Partner Agreement; and
  • Adult Interdependent Relationships, unlike federal “common-law” relationships or other provinces’ laws about living together, can occur in non-romantic (in other words, non-conjugal) situations.

In Alberta, a person is in an Adult Interdependent Relationship (AIR) if he or she has been living with and in a “relationship of interdependence” with another person:

  • for 3 years; or
  • for less than 3 years if they have signed an Adult Interdependent Partner Agreement (see the “What the words mean” section above); or
  • for less than 3 years if they have a child together (by birth or adoption).

A “relationship of interdependence” is a relationship where the partners are not married but they:

  • share one another’s lives;
  • are emotionally committed to one another; and
  • function as an economic and domestic unit.

Once you are in an AIR, you are called “Adult Interdependent Partners.”

In other words:

  • If you live together for 3 years (without having or adopting a child or signing an Adult Interdependent Partner Agreement), you will be in an AIR when you reach the third anniversary of moving in together (whether you want to be or not).
  • If you have or adopt a child together, you automatically become Adult Interdependent Partners upon the birth or formal adoption, no matter how long you have lived together.
  • If you sign an Adult Interdependent Partner Agreement (AIPA), you become Adult Interdependent Partners as soon as it is completely signed and witnessed, no matter how long you have lived together. However, you cannot sign an AIPA if you are a minor, unless you are 16 or over and have your guardians’ consent.

In Alberta, when you are in an AIR, there are laws that specifically address the breakdown of your relationship. In particular, the Family Law Act governs the issues of the care and financial support of children, and allows for the possibility of applying for partner support. However, unlike for married spouses, there is no specific law that guides the division of property when non-married partners separate.

In addition, it is important to remember that all other general law also applies. For example: what the law says about owning things in “joint tenancy” or having a “joint debt” still applies. For that reason, please review the “Financial issues” section below.

For detailed information on what exactly you need to do to “end” your AIR, as well as information about all of the rights and obligations that arise as a result of the end of your relationship, see the Ending a Non-married Romantic Relationship Information Page.

Married

In order to be married, you have to have gone through a marriage ceremony. Furthermore, that ceremony has to have met all of the requirements for a legal marriage ceremony in the jurisdiction where the marriage ceremony took place. If it did, you will have been given some kind of “marriage certificate.”

Be Aware

For marriages in Canada and many other countries, purely “religious” marriage ceremonies do not meet the requirements for a legal marriage ceremony.

For more information about whether your marriage will be recognized by Alberta law, see the Getting Married Information Page.

In Alberta, when you are in a marriage, there are laws that specifically address the breakdown of your relationship. Specifically, the federal Divorce Act dictates what must be done to end the marriage, and outlines the rights and responsibilities involved, such as spousal support and the care and financial support of any children of the marriage. The division of property for married spouses is governed by the Alberta Matrimonial Property Act.

In addition, it is important to remember that all other general law also applies. For example: what the law says about owning things in “joint tenancy” or having a “joint debt” still applies. For that reason, please review the “Financial issues” section below.

For detailed information about what exactly you need to do to “end” your marriage, see the Ending a Married Relationship Information Page.

Learn about the law

Make sure you learn Canadian law

Canadians are exposed to a great deal of American television and movies, many of which show aspects of American law. In addition, it is very common for people who research the law online to read about U.S. law and think they are reading about Canadian law. This can lead to a great deal of confusion. Many people think that our laws are the same as, or similar to, American laws. They are not.

When you are researching the law, be sure you are finding applicable Canadian and Alberta law. For more information about finding legal information that is applicable and reliable, see the How to Identify Quality Legal Information Online page and the Educating Yourself: Legal Research Information Page.

Laws are not the same in every province

Just as you cannot apply American law in Alberta, you cannot apply the laws of other provinces and territories in Alberta.

This is another confusing area. Canada has a federalist system of government. This means that some law-making power lies with the federal government, and other law-making power lies with the provincial governments. In family law, some of the laws that affect separating couples are federal laws, while others are provincial laws.

For example, the Divorce Act, which deals with divorce itself, as well as some of the associated topics (such as child and spousal support), is a federal law. However, the law-making power over “property in the province” was given to the provinces. This means that, although the law of divorce is the same throughout Canada, the law around the division of property is not. The power over “civil rights in the province,” including non-married romantic relationships, was also given to the provinces. In Alberta, the law in this area is called the Family Law Act; it deals with family breakdown (but not divorce), including child support and partner support (but not division of property).

Although all provinces have the same law-making powers, not all provinces deal with their powers in the same way. As a result, Alberta’s provincial laws may be quite different than those of neighbouring provinces. However, when searching for legal information online, you will likely get many out-of-province results. Different provinces’ laws may also have similar names—for example, the Family Law Act, which is the title of similar law in Ontario and British Columbia. Although the Acts share the same name, they are very different, and each only applies within its own province.

When you are researching the law, be sure you are finding applicable Alberta law, and not the law of other provinces.

Does Alberta family law apply to you?

In general, the law on this Information Page is for couples who live in Alberta. This is because generally, in order for Alberta’s family law to apply, the partners affected should live in Alberta. Similarly, in order to be able to apply to an Alberta court for a divorce, you have to have lived in Alberta for at least one year.


In addition, if any other province, territory, or country has already made a court order related to your separation or divorce, or if a move has occurred or is planned, an Alberta court may not be able to hear your matter (or it may need more information before deciding if your matter can be heard in Alberta). For more information, see the Family Breakdown and Out-of-Province Issues Information Page.

Living “separate and apart”

If you had common law status, are in an Adult Interdependent Relationship, or are married, the question of when exactly you separated will be important. In legal terms, this is known as when you started to live “separate and apart.” But what exactly does this term mean?

The start of the period of living “separate and apart” (the separation) is usually when one partner tells the other that he or she wants to separate. The partner being told about the separation does not have to “agree” to the separation.

Although separation usually means living in separate places, this does not have to be the case. You may be separated from your partner even if you continue to live in the same house. However, when you do live in the same house, it is more difficult to prove that you are separated.

If you are ever in court about this issue, the judge will look at all of the facts of the situation. The key concern is when the couple stopped “marriage-like” activities such as:

  • sharing a bedroom;
  • having sex;
  • going to family events together;
  • sharing a social life;
  • eating together;
  • providing emotional comfort;
  • doing each other’s laundry; and
  • cooking and cleaning for each other.

For more information about living “separate and apart,” including the time requirements and how to prove it, see the Ending a Non-married Romantic Relationship Information Page or the Ending a Married Relationship Information Page.

If you have children

If there is a child, or children, in your relationship, there are some specific things to know during your separation.

Keep the children in mind

Separation and divorce is often very difficult on the children. They see things differently than their parents, and their needs are different than those of their parents. At this time, more than ever, the children need help and support from their parents. This is especially challenging for parents since it is such a stressful time.

It is normal to be concerned about what the other parent may do. For example, you may worry that he or she may keep the children from you and not let you see them. Or that he or she may leave with the children. While these concerns are normal, they very rarely occur. Remember that if the other parent has been a good parent up to now, they will probably continue to be a good parent and consider the children’s needs.

For information on how to help your children successfully manage the situation, see the following resources.

Web Parent Guide
Justice Education Society
English
Web Victims of Family Violence - Testifying in Criminal Court
Public Legal Education and Information Service of New Brunswick
English



Web Co-Parenting Tip Sheets
Calgary Catholic Immigration Society
Arabic, Chinese, English, French, Korean, Spanish, Swahili, Vietnamese
See “Co-Parenting Tip Sheets” at the bottom of the page.

Web Mindful Co-Parenting: Helping Children Cope with Divorce
Custody X Change
English
This resource is from a private source outside Alberta. Learn more here.

Video Your Children are Suffering
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.

Video Divorce et séparation : Considérations juridiques
Family Law NB
French
This resource is from outside Alberta. Learn more here. Cette ressource a été créé pour les couples mariés, mais beaucoups de concepts s’appliquent aux couples non-mariés.

Web Help for kids
Government of Canada
English

Web De l'aide pour les enfants
Government of Canada
French

Web Children and Divorce FAQs
Centre for Public Legal Education Alberta
English

PDF What Children Need when Parents Separate
Government of Alberta
English


Web Are you making any of these divorce mistakes? Part 2
Kirk Montoute LLP
English
This resource is from outside Alberta. Learn more here.

Video When Your Family is Not Neurotypical
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.

Web Can I Keep My Ex’s New Partner Away from My Kids?
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

Both parents have rights

In most cases, unless ordered otherwise by a court, both parents have guardianship of a child and the child generally has the right to spend time with each of the parents. This means that neither parent is presumed to have a legal right to parenting time over the other parent. This is true even if one parent did most of the child care. Similarly, unless ordered otherwise by a court, both parents have a say in decisions that affect the child. As a result, you can no longer do certain things without the consent of the other parent (such as crossing the Canadian border).

Be Aware

If a Custody Order is not in place, a parent should not take a child from the home without letting the other parent know where the child will be and getting consent from the other parent.

Rights and responsibilities can exist even if the child has not yet been born. For example:

  • in certain circumstances, under the Alberta Family Law Act a pregnant woman may be able to apply for some child support (this is not possible under the Divorce Act); and
  • if you are the father of an unborn child, showing an “intention” to take financial care of the child can help to ensure that you will be a guardian of the child after the child is born.

For more information, see the following Information Pages:

Temporary arrangements are possible

Whether you come to an agreement on your own or have to involve a court, you can start with temporary solutions. You do not have to decide about the rest of the child’s life right now, or even in the next month. Temporary, or “interim,” arrangements can be made. If the parents cannot agree on initial arrangements for the children, they can get an “interim” (temporary) order from the Court that makes arrangements for the children in the first few weeks or months. This can be done quite quickly.

For more information, see the following Information Pages:

Tip

For child and support-related issues, married spouses can choose between the federal Divorce Act and the Alberta Family Law Act. For detailed information about what to consider when making this choice, see the “Using the Divorce Act or the Family Law Act: What to consider” section of the Ending a Married Relationship Information Page.

The legal test: “The best interests of the child”

If you are going to court, there is only one “test” that will be applied to the issue of parenting time: the “best interests of the child” test. This approach applies to both custody and access arrangements under the federal Divorce Act, and to guardianship and parenting time arrangements under the Alberta Family Law Act.

For more information on the best interests of the child and how that test is applied in court, see the following Information Pages:

You can’t just move away and take the kids

You cannot simply leave, or move away, and the take the child with you without letting the other parent know.

If you do, you may be criminally charged. If a parent removes and hides a child under the age of 14 from the other parent, without that parent’s consent, it is a crime. This is called “parental abduction.” Even if the child is over 14, the parent could get into legal trouble. This could lead to many more problems later on.

This does not mean that you cannot leave with the children. It just means that if you do so, you must let the other parent know, and make arrangements right away for the other parent to have parenting time with the child.

Therefore, if a Custody Order is not in place, a parent should not take their child from the home without letting the other parent know where the child will be and receiving their consent.

See the following resources for more information.

Web Unilateral Relocations – Don’t Do It!
Centre for Public Legal Education Alberta
English

Web Can I take my child with me when I leave my abusive partner?
Community Legal Education Ontario
English
This resource is from outside Alberta.Learn more here.

For more information on the possibility of getting charged with abduction, see the following resources.

Web Child Abduction
Centre for Public Legal Education Alberta
English

Audio/Web Abducted Children & the Hague Convention
Calgary Legal Guidance
English

If your children have been abducted by the other parent/guardian, call 911.

The following resources provide further information.



Web Parental Child Abduction
MissingKids.ca
English

Web Abduction Information
Child Abduction Legal Information
English
This is a private source.Learn more here.

Video Episode 213- Child Abduction with Crystal Dunahee
AdviceScene
English
This is a private source.Learn more here.

For more information, see the following Information Pages:

Tip

For child and support-related issues, married spouses can choose between the federal Divorce Act and the Alberta Family Law Act. For detailed information about what to consider when making this choice, see the “Using the Divorce Act or the Family Law Act: What to consider” section of the Ending a Married Relationship Information Page.

You also might not want to just move out and leave the children

Some parents simply move out (or away) and leave the child with the other parent without making any arrangements to see the child. Leaving the child like this does not mean that the child cannot live with you in the future. But your partner may later argue, and it could suggest to a court, that you felt that leaving the child with your partner was in the best interests of the child. This could make it harder for you in the future to get an order for your child to live primarily with you. See the following resource for more information.

Child support: Providing for your children

Child support is money paid by a parent toward the living expenses of his or her child (also called the “necessities of life”). Child support is a requirement in both the federal Divorce Act (which deals with divorce issues all across Canada) and the Alberta Family Law Act (which deals with family breakdown in Alberta, and was intended specifically to deal with family breakdown for non-married couples, as the Divorce Act does not apply to them). The concept of “necessaries of life” is also included in the Criminal Code of Canada, where the failure to provide the “necessaries of life” can be a crime. In addition, people other than parents can be required to pay child support, including step-parents.

It is important to understand that child support is the right of the child. Even though child support is generally paid to the parent, it is the child who has the right to child support. This means that a parent who has the majority of care and control of the child cannot bargain away child support, or accept an amount that is unreasonably low. The parent does not have the right to do so.

Similarly, it is important to understand that child support is different from spousal/partner support and the division of property. You can have rights for all three issues, and you do not have to give up your right to one for “more” of another.

Often, upon separation, there is an urgent need for child support. You can choose to work out a temporary arrangement on your own, or if you need to, you can go to court. This can be done quickly.

For detailed information about child support issues, see the following Information Pages:

Tip

For child and support-related issues, married spouses can choose between the federal Divorce Act and the Alberta Family Law Act. For detailed information about what to consider when making this choice, see the “Using the Divorce Act or the Family Law Act: What to consider” section of the Ending a Married Relationship Information Page.

Financial issues

When you separate or divorce, it is critical that you have a complete picture of your financial situation: you will need this information for just about all of the decisions you will have to make.

Make a list

In order to get a complete picture of your financial situation, you can first look at everything you have and owe. Without knowing what you are working with, you cannot know what needs to be done in order to plan ahead and/or protect yourself financially.

You can start by making a complete list of:

  • All of the property you own, together or separately (for example: bank accounts, vehicles, furniture, investments, pensions, and your home). Include the names of your financial institutions and account numbers.
  • All of the debt you owe, together or separately (for example: loans, the mortgage, and credit card debt). Again, include the names of your financial institutions and account numbers.
  • Your income and the income of your partner.
  • Your expenses (this includes what they were and what you think they will be if you separate).

Having all of this information will be critical later when you are working out support issues and how to divide your property.

As you work through your separation, it will also be important to keep track of your expenses, and keep receipts!

Get copies of any important documents you need

It is not enough to make a list: you also need to make sure that you have copies of all important information—both financial and otherwise. Once you leave, it may be difficult to get any important documents that you may need. Take a moment to get copies of items such as:

  • bank and credit card statements
  • recent pay stubs
  • insurance information
  • birth certificates
  • health care cards
  • personal identification
  • your last 3 years’ tax returns and notices of assessment (for both yourself and your partner). A “tax return” is all of the paperwork you send to Canada Revenue Agency when you do your taxes every year. A “Notice of Assessment” is the paperwork that Canada Revenue Agency then sends back to you with a summary of the information in your tax return, explaining whether you are getting a refund or if you owe any taxes.

For more information, see the following resource.

PDF Living Together or Living Apart
Legal Services Society
Chinese, English, French, Punjabi, Spanish
This resource is from outside Alberta. Learn more hereSee p. 10.

For examples of what tax returns and Notices of Assessment look like, see the following resource.


Web Income Tax Notice Of Assessment
Dominion Lending Centres Inc.
English
This is a private source. Learn more here.

Take steps to financially protect yourself

It is quite common for partners to hurt one another financially after a breakup. As a result, you need to make sure that you take steps to protect your financial interests.

A few examples:

  • Establish your own accounts, which your partner cannot access.
  • Some of your credit cards and lines of credit may be in joint names. This means that you are both responsible for the debts. As a result, in order to help ensure that you will not be responsible for your ex-partner’s post-separation debts, you may wish to talk to your bank about what you can do (for example: closing accounts, opening new accounts, and freezing accounts).
  • Things with your name on it are your responsibility. If you have a credit card in your name, and your ex-partner has a secondary card on the same account, you may wish to cancel that secondary card.
  • Understand and get a copy of your credit history and your credit report and score. Having a good credit report and credit score is very helpful in re-establishing yourself on your own. In addition, if any of your partner’s actions or inactions have had a negative effect on your credit history, you may be able to take steps to improve the situation. For more information, see the following resources.
Web Credit Reports, Credit Scores and Credit Repair
Government of Canada
English

There are also formal legal steps that can be taken to protect certain kinds of property. For more information, see the Process tab of the Property Division for Unmarried Couples Information Page or the Property Division for Married Spouses Information Page.

For more detailed information about how being together affected your finances (including things like credit cards, loans, joint property, leases, and utility bills), see the Before Moving in Together Information Page and the following resource.

PDF Divorce & Your Credit
Consolidated Credit Counseling Services of Canada, Inc.
English
Web Protecting Your Finances During a Divorce
Loans Canada
English
This is a private source. Learn more here.

Web Separation & Joint Debt
Divorce Canada
English
This is a private source. Learn more here.
Web Think about these financial matters when divorcing
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Insurance and Divorce
Self-Counsel Press
English

PDF Moving On: A Practical Guide for Women Leaving a Relationship
Government of Prince Edward Island
English
This resource is from outside Alberta. Learn more here.

PDF Aller de l’avant: Guide pratique à l’intention des femmes qui décident de mettre fin à une relation
Government of Prince Edward Island
French
This resource is from outside Alberta. Learn more here.

Web Parenting After Separation: Finances
Legal Services Society
English
This resource is from outside Alberta. Learn more here.

Bankruptcy

The process of separating can be expensive. Even in the best of situations, such as where the spouses agree on everything, there will expenses—finding a new home, getting new furniture and appliances, setting up new utilities, realty fees, legal fees, potential child support, and potential spousal support—just to name a few. In cases where there is much disagreement and matters have to be resolved in court hearings, the costs are even higher.

Sometimes, the costs can lead to bankruptcy. Or, a partner may try to claim bankruptcy in order to get out of paying some of the costs associated with separation and divorce, or to harm their former partner.

Be Aware

Child support and spousal support payments are not affected by bankruptcy. These payments must be kept up-to-date. Arrears will still be owed.

For more detailed information about bankruptcy, see the Property Division for Unmarried Couples Information Page or the Property Division for Married Spouses Information Page.

Partner support

Partner support (sometimes called “spousal support”) is money paid by one former partner to the other former partner to help with living expenses.

To be eligible to ask for partner support, you must have been married or in an Adult Interdependent Relationship. However, just because you were married or in an Adult Interdependent Relationship does not mean that you will automatically get partner support. Not every couple who separates will end up with one former partner paying partner support to the other.

Often, upon separation, there is an urgent need for partner support. You can choose to work out temporary arrangement on your own, or if you need to, you can go to court. This can be done quickly.

Be Aware

One partner making more money than the other is not enough reason to be entitled to partner support—a judge will consider many other factors when making this decision.

For more detailed information, see the following Information Pages:

Who will live in the family home?

In many cases, before the final property division is decided upon, one partner will stay in the family home, and the other partner will leave the home. Or, the children will stay in the home, and the parents will alternate who is in the home with the children. Sometimes, the partners can agree on these arrangements; sometimes they cannot.

In certain situations where the partners cannot agree on who will live in the home, it is possible to ask Court for an order of “exclusive possession.” You can get an order for exclusive possession for a house, apartment, or condo, whether it is owned or rented. This type of order says that only one partner gets to live in the home. The order will have a time limit. Often the order includes goods in the house, and can even apply to a vehicle. The other partner can no longer live there (until the Court says otherwise).

When ordering exclusive possession, the powers of the Court are quite broad. For example: if necessary, the Court can:

  • evict one of the partners;
  • keep that partner from being in (or even approaching) the home; and
  • direct one of the partners to pay the mortgage.

Mortgage payments that are made as result of an order of exclusive possession are not tax deductible for the payor unless the partners have a written agreement or court order that allows mortgage payments to be tax deductible.

However, until there is a court order for exclusive possession, both partners have the right to live in the home (and the locks cannot be changed).

Family Violence

In situations where there is domestic violence, it is common for the victim to ask for exclusive possession. In an order for exclusive possession, the court can forbid the other partner from entering or being near the home. However, it only protects you in and around the home. You may still want to get a protective order (such as a restraining order). This can protect you when you are away from your home. It can also protect you from unwanted telephone calls, emails, texts, and other contact. For more information, see the Protective Orders Information Page.

For more detailed information, see the following Information Pages:

Property: Who gets what?

If you are married, the division of your property will be governed by Alberta’s Matrimonial Property Act. Under this law, the property and debts that you accumulated during the time of your marriage (“matrimonial property”) is to be divided equally between you, unless it is unfair to do so. There are other “categories” of property that are treated differently.

If you are not married, there is no specific law governing the division of your property (not even for couples in an Adult Interdependent Relationship), and the rules that apply to married couples (under Alberta’s Matrimonial Property Act) do not apply to non-married couples. Specifically, unlike for married people, there is no presumption that property acquired by the partners while they were living together be shared equally at the end of the relationship.

For more detailed information, see the following Information Pages:

If you were engaged

If you and your partner were engaged when you decided to separate, you may have some additional issues to think about, including who gets the engagement ring, what happens to any wedding gifts, and the concept of “breach of promise to marry.”

For more information about these issues, see the “Ending an engagement” section of the Ending a Non-Married Romantic Relationship Information Page.

Updating your Will and other legal documents

When you entered into your relationship, you may have signed various kinds of legal documents giving each other legal decision-making powers or financial benefits in case of your illness or death.

Many people assume that, when they split up, any previous legal documents will no longer be valid. This is incorrect. As a result, you will need to review, and perhaps re-do, various kinds of legal documents.

For more information, see the following resources and the rest of this section.

Web Important to update your estate plan after divorce
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Changing your Estate Plan after separation
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Should I execute a new will after separation or divorce in Alberta?
Kirk Montoute LLP
English
This is a private source. Learn more here.

Power of Attorney (PoA)

A Power of Attorney (PoA) is a document that gives someone else the ability to make your financial decisions for you when you can no longer make those decisions for yourself. If you signed a PoA giving decision-making power to your former partner, you may want to sign a new one (your breakup does not make the PoA invalid). For more detailed information, see the Planning for Illness Information Page.

Personal Directive (PD)

A Personal Directive (PD) is a document that gives someone else the ability to make your personal decisions for you when you can no longer make those decisions for yourself. “Personal decisions” are all non-financial decisions (including medical decisions). If you signed a PD giving decision-making power to your former partner, you will now want to sign a new one (your breakup does not make the PD invalid). For more detailed information, see the Planning for Illness Information Page.

Will

A Will is a document that says what will happen to your “estate” once you have died. Your “estate” is most (or sometimes even all) of your property, including money, that is distributed by your Will.

You may have signed a Will that:

  • gives some or all of your estate to your former partner, and/or
  • makes your former partner the Executor (also called a “personal representative”) of your estate.

Your breakup does not necessarily make the Will invalid. So now you will probably want to sign a new one. For more detailed information, see the Planning for Death Information Page.

Designation of Beneficiary forms

When a person dies, much of what they own goes into their estate, to be dealt with in their Will. But there are certain types of things that do not pass through the Will. Instead, they go directly to a specific person. This includes assets and policies that are left to someone (the “beneficiary”) because that person is named on something called a “Designation of Beneficiary” form. Examples include: life insurance, pension plans, Registered Retirement Savings Plans (RRSPs), and Tax-Free Savings Accounts (TFSAs).

A separation does not affect your Designation of Beneficiary forms. In other words, if you do not sign a new form after you separate, your former partner will get the death benefit. If you separate, be sure to sign new Designation of Beneficiary forms.

For more information about Designation of Beneficiary forms, please see the following resources.

Web The Importance of Beneficiary Designations
Advisor Group
English
This resource is from a private source outside Alberta. Learn more here.

PDF Beneficiary Designations: Why, when and how?
Manulife Financial
English
This is a private source. Learn more here.

Web Designated beneficiaries
Government of Canada
English

Web Bénéficiaires désignés
Government of Canada
French

PDF Understanding Insurance Basics
Government of Canada
English

PDF Mieux comprendre les assurances
Government of Canada
French

Web Module 6. Insurance
Government of Canada
English

Web Module 6. Assurances
Government of Canada
French

Aboriginal matters and on-reserve considerations

For many of the above issues, being Aboriginal does not change anything. However, if you live on-reserve there can be major differences. For general information, see the “Aboriginal matters and on-reserve considerations” sections of each individual topic’s Information Page. To find Information Pages that discuss your legal issue in detail, you can browse the Family Law Topics page of this website, or go through the Guided Pathway by clicking the “Guided Pathway” link on the top of the page.

Again, if you live on-reserve there can be major differences. For information about these differences (such as the enforcement of child support and spousal/partner support), see the Family Breakdown if You Live on Reserve Information Page.

Religious and cultural considerations

Sometimes, when couples are separating, there are religious issues that they wish to take into consideration. Religious rules and laws, like all foreign law, are not recognized or applied in Canadian law.

For more information on religious and cultural practices when dealing with separation or divorce, see the following resources.

Web What is a "Jewish divorce"?
Luke's Place
English
This resource is from outside Alberta.Learn more here.

PDF Why do I need a Jewish divorce? Questions & Answers about Divorce for Jewish Women
Act to End Violence Against Women
English, French, Russian, Spanish, Other languages
This resource is from outside Alberta.Learn more here.

Web Marriage and Divorce
Metropolitan Action Committee on Violence Against Women and Children
English
This resource is from outside Alberta.Learn more hereSee “Removing religious barriers to remarriage.”

PDF Family Property & Spousal Support: Muslim & Canadian Family Laws
Canadian Council of Muslim Women
English
This resource is from outside Alberta.Learn more here.

PDF Divorce: Muslim & Canadian Family Laws
Canadian Council of Muslim Women
English
This resource is from outside Alberta.Learn more here.

PDF Domestic Contracts (for Muslim Women)
Canadian Council of Muslim Women
English
This resource is from outside Alberta.Learn more here.

PDF Domestic Contracts: Muslim & Canadian Family Laws
Canadian Council of Muslim Women
English
This resource is from outside Alberta.Learn more here.

PDF Muslim & Canadian Family Laws: A Comparative Primer
Canadian Council of Muslim Women
English
This resource is from outside Alberta.Learn more here.


Web Did Traditional Dowry Gift from Groom’s Family Come with Conditions?
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta.Learn more here.

PDF Enforcing Mahr in the Canadian Courts
Ontario Bar Association
English
This resource is from outside Alberta and can be a challenge to read.Learn more here.
LGBTQ considerations

In Alberta, the laws around both married and non-married relationships is no different for LGBTQ couples than they are for anyone else. Your separation and divorce will be guided by the same laws and approaches described above and on the Information Pages for each topic.

However, there may be some difficulties if you have transitioned, or are in the process of transitioning. Whenever you involve the law, you must identify yourself and you must always identify yourself in the same way. This can take some extra work.

For example, your family relationships may have developed while you were still using the name and/or gender assigned at birth. You may have to take additional steps to show that you are the same person. You may need to prove that you meet all the requirements to make your court applications.

In addition, if you are making an application about the care of children, you must show that what is being requested is in the best interests of the child. As the law is only now getting caught up with gender transition and non-binary gender, you can expect difficulties. For example, someone may argue that your presence would be confusing for a child.

This is a very complex area: consider consulting a lawyer. For more information about working with a lawyer, see the Working with a Lawyer Information Page.

Blended family considerations

In Alberta, the laws around both married and non-married relationships are no different for blended families than they are for any other families. Your separation and divorce will be guided by the same laws and approaches described above and on the Information Pages for each topic.

Depending on your exact situation, a few topics that might be of particular concern include:

  • Depending on your exact situation, you may need to know about “standing in the place of a parent” (sometimes called “in loco parentis”). This phrase describes a situation where someone who was not the parent of a child nevertheless acted as a parent to that child. As a result, this person may wish to (or be required to) take on legal responsibilities as if he or she were a parent. A step-parent might stand in the place of a parent. In that case, the step-parent may be given the same rights and responsibilities as a biological or adoptive parent.
  • How a new blended family can lead to a change in a child support order. Specifically, an increase in household income due to a new partner can be considered in a claim of “undue hardship.”
  • How a new blended family (specifically whether either of the former partners lives with another adult who earns income) can affect or change an order for partner/spousal support.

For more information about these issues, see the following Information Pages:

Polyamorous considerations

Under the Divorce Act, it is impossible for a person to have more than one legal spouse—it is illegal to be married to more than one person at a time. Therefore, in terms of the “divorce” itself, the rights and obligations described above would only apply in the relationship between the spouses who were married to one another. Any additional person romantically involved with the two married spouses would not be part of the “divorce.”

Under the Alberta Adult Interdependent Relationships Act, a person cannot have more than one Adult Interdependent Partner (AIP) at the same time. Also, a person cannot become the AIP of another person if that first person is already living with his or her married spouse. Therefore, there can only ever be two AIPs that are subject to the rights and obligations related to the ending of an AIR.

Similarly, both the federal Divorce Act and Alberta’s Family Law Act only allow the spouse or Adult Interdependent Partner (of which there can only be one at a time) to apply for spousal/partner support.

However:

  • If you have been involved in a polyamorous relationship where one or more partners had children, you may want to continue to be involved in the life of a child of one of your former partners. Or, one of your former partners may want to continue to be involved in the life of your child. This involvement could be in the form of guardianship, parenting time, or contact. In such a case, you would have to meet all of the conditions that are required by law, as described above. Specifically, you would have to show that your request is in the best interests of the child. For information about that, see the Guardianship & Parenting under the Family Law Act Information Page.
  • If you “stood in the place of a parent” to a child or children during the polyamorous relationship, you may want to provide child support, or you may be required to provide child support. For information about that, see the Child Support under the Family Law Act Information Page.

This is a very complex area: consider consulting a lawyer. For more information about working with a lawyer, see the Working with a Lawyer Information Page.

Concerns for immigrants and other non-citizens

One or more parties in the relationship may not be citizens or permanent residents of Canada because they are:

  • in the process of immigrating;
  • conditional permanent residents;
  • on a study permit or student work visa;
  • on a work permit; or
  • hired as a temporary foreign worker.

In these situations, family breakdown may be much more complex. This is especially true if one partner is being sponsored by the other for immigration, or if the relationship involves domestic violence.

Although all of the general family law rules and processes still apply, immigration issues may play a huge role in deciding:

  • what to do when,
  • whether and when to involve a lawyer,
  • what you need to include in any agreement, and even
  • what you can ask for in court.

If any of the above applies to you, be sure to review Family Breakdown and the Immigration Process and the following resource.

Web Marriage Breakdown
Centre for Public Legal Education Alberta
English
If one or both of the partners are involved in criminal proceedings

If one or both of the partners is involved in criminal law issues at the time of family breakdown, the situation is much more complex.

This is even more true if there is also domestic violence involved. Although all the general family law rules and processes still apply, the involvement of criminal issues may play a huge role in deciding:

  • whether and when to involve a lawyer;
  • visitation and support issues; and
  • when and how to schedule court hearings.

If you are experiencing family breakdown and one or more of you is involved in criminal proceedings, be sure to review the Family Breakdown and Criminal Law Information Page.

Help from Resolution and Court Administration Services (some will be mandatory if you go to court)

Resolution and Court Administration Services (RCAS) is a group of programs and services offered by the Alberta government to help people resolve their legal matters. RCAS staff:

  • help you stay out of court when possible;
  • help with the court process and forms if you go to court; and
  • offer free or low-cost programs to help families with the legal system.

For more information about how RCAS can help you, see the following resource.

Web Resolution and Court Administration Services
Government of Alberta
English

A few of these programs and services are described below. You can find much more information about all of these on the Information Pages about each topic.

Parenting After Separation (PAS)

Parenting After Separation (PAS) is a free course that is offered through Alberta Courts both in-person and online. PAS teaches parents about:

  • the separation process;
  • the effects of separation on children;
  • techniques for communication;
  • legal information that affects parents and children; and
  • how to work together to meet children’s health, social, educational, and emotional needs.

PAS is offered online throughout Alberta and in-person in some areas of Alberta.

Family Violence

If you attend PAS in person, you do not have to attend with your former partner, and there are safety precautions in place for families experiencing domestic violence. You may also attend PAS online.

Parenting After Separation for High Conflict Families (PASHC)

This program is for parents who:

  • have already completed the PAS workshop; and
  • are still struggling to communicate with each other.

It is a voluntary program. This program is currently only offered in Edmonton and Calgary.

Focus on Communication in Separation (FOCIS)

FOCIS is a free, voluntary, 6-hour, skill-based communication course. Again, you do not have to be involved in a court process to take this course. Parents are not allowed to take the course together.

Caseflow conferencing

This program is offered in some locations for matters under the Family Law Act only. It is not available for matters under the Divorce Act. This is a program that is available to parties without a lawyer who have filed their first court application, but have not yet gone before a judge. It is meant to help parties reach an agreement out of court, or to be better prepared when going to court.

Free family mediation

Whether or not you have a court action started, you may use the Family Mediation Program offered by Resolution and Court Administration Services. Mediation aims to help you reach an agreement out of court about your separation issues. To qualify for free mediation:

  • one of the parties must make less than $40,000 a year; and
  • there must be at least one dependent child under 18 years old.

This service is offered across the province. Where mediation is possible, it is greatly encouraged.

Brief Conflict Intervention (BCI)

This program is for parents who already have an application in court. It provides up to 10 hours of solution-focused intervention, resulting in a report. This report does not contain recommendations, but it is available to the judge that hears your application. This service is available across Alberta.

To use the BCI program:

  • there must be children involved;
  • one of the parents must earn less than $40,000 per year;
  • there must be an application already filed in one of the courts;
  • you must have already tried mediation without success; and
  • you must both agree to use the program.

More information

For more information about all of these programs and resources, see the following Information Pages:

Out of court resolution options

You do not have to go to court to solve your separation issues. It is possible to agree. Although court is an option, it is merely one option in a range of possibilities.

You can agree on your own or with the help of a “third party.” A third party is a person who is not directly involved with the legal issue, but is connected to it in some other way. For example, professionals who work with families to sort through legal problems.

Coming to an agreement on your own

The first out-of-court option is to come to an agreement on your own. This is sometimes called the “do-it-yourself” or the “kitchen table” option. Although this can work for many people, it does not work for all. In certain situations, such as in many cases of domestic violence, it may not be at all appropriate. For more information, see the Coming to an Agreement on Your Own Information Page.

Mediation

If you need a bit of help to resolve your issues, you can always use a mediator. In mediation, the decisions are still made by the parties. But they reach those decisions with the help of an independent and trained third party. The mediator does not take sides and does not make the decisions for you. For more information, see the Alternative Dispute Resolution Information Page.

Arbitration

Arbitration also involves the help of an independent and trained third party. However, the third party is hired to make a decision. In other words, the arbitrator hears both sides, reviews documents and evidence, and comes up with a binding decision. For more information, see the Alternative Dispute Resolution Information Page.

Negotiating through lawyers

“Negotiation” is a term used to describe any process where there is a “discussion” to resolve a disagreement or conflict. The goal of the discussion is to come to an agreement. This is different from simply “presenting sides” and having someone else make a decision for you. Coming to an agreement on your own and mediation are two forms of negotiation.

You can also negotiate though lawyers. In fact, many family law cases are solved in this way. The parties resolve their issues before ever getting in front of a judge by suggesting different solutions through their lawyers. Most lawyers will try to negotiate before they decide to take the case to court.

For more information, see the Alternative Dispute Resolution Information Page.

Collaborative Family Law

Collaborative Family Law is another way of working together. It has 2 key features:

  • each party hires a lawyer; and
  • the parties and the lawyers agree to resolve all matters without going to court or threatening to go to court.

For more information, see the Alternative Dispute Resolution Information Page.

More information

See the following resources for a good overview of all of the above non-court options.

PDF Breaking up: Without court
Canadian Bar Association
English

PDF Se séparer sans l’aide des tribunaux
Canadian Bar Association
French

Webinar Conflict, Court, or Another Way? Different Ways of Resolving a Family Dispute
Your Legal Rights
English
This resource is from outside Alberta. Learn more here.

Web Family Law Education for Women
Metropolitan Action Committee on Violence Against Women and Children
Arabic, Chinese, English, Farsi, French, Korean, Punjabi, Russian, Somali, Spanish, Tamil, Urdu
This resource is from outside Alberta. Learn more hereChoose your language, then see topic #1.

Web Resolving disputes - think about your options
Government of Canada
English

Before heading to court: Is an Alberta court the right court?

Sometimes it is very clear that an Alberta court is the correct court to be in. Below are two examples.

  1. Both partners currently live in Alberta and have never lived anywhere else.
  2. Both partners moved to Alberta from another province. They still live here. No court action has been started in any other province or country. And most of their property is located in Alberta.

Sometimes the situation becomes more complicated. Below are two examples.

  1. A court action was started in another province or country, and then one or both partners moved to Alberta.
  2. One or both partners were living in Alberta, but have now left the province, or are planning to move away.

In these situations, the Alberta courts may not have the right to hear the matter. Or, the court may want to hear some of the details to decide if they can hear the matter.

If any of these situations apply to you, see the Family Breakdown and Out-of-Province Issues Information Page.

Resolving your issues in court

Separating and/or divorcing couples are often encouraged to resolve their issues out-of-court, as going to court is usually much more time-consuming, stressful, and expensive.

However, sometimes it is not possible for the parties to resolve their issues without going to court. If none of the out-of-court resolution options work for you, you can still go to court.

Choosing a law and choosing a court

As noted above, if you are married, you can deal with your spousal support, child support, and custody/access issues using the federal Divorce Act. However, you do not have to do so. Instead, you can choose to use Alberta’s Family Law Act. This is a very important choice—although the Family Law Act is similar to the Divorce Act, there are important differences that could affect your rights and responsibilities. For more information about things to consider when making this choice, see the “Using the Divorce Act or the Family Law Act: What to consider” section of the Ending a Married Relationship Information Page.

If you are not married (or if you are married, but chose to use the Family Law Act), you will also have a choice to make. In Alberta, under the Family Law Act, if you need to go to court, you have a choice between two courts: Provincial Court and Court of Queen’s Bench. Each of the courts has different requirements, rules, forms, and services. In addition, there are certain things you can only request in one of the two courts. Therefore, depending on what your situation requires, the choice of court can be a critical factor.

As a result, if you decide to go to court, be sure to read about ALL of the topics that you need to address, before deciding which court is best for you.

Be Aware

Wherever possible, the Alberta courts prefer to keep all matters relating to one family within one level of court.

For detailed information about all of the things to consider when choosing which court to use, see the Alberta’s Two-Court System Information Page and the “Alberta’s two-court system” section on all of the Information Pages for each topic. To find Information Pages that discuss your legal issue in detail, you can browse the Family Law Topics page of this website, or go through the Guided Pathway by clicking the “Guided Pathway” link on the top of the page.

Understanding the court system

Before going to court, you will want to learn more about how the court system works and what you can expect, such as:

  • procedures;
  • different kinds of hearings;
  • which documents you will need to provide; and
  • what to wear.

Educating yourself will be even more important if you are planning on representing yourself in court.

For more information, see the Understanding the Court Process Information Page. If you are representing yourself, make sure you also look at the Representing Yourself in Court Information Page.

Representation in court

Once you get to court, you can:

  • represent yourself; or
  • be represented by a lawyer.

See the Representing Yourself in Court Information Page and Working with a Lawyer Information Page for more information about these options.

Process

LegalAve provides general legal information, not legal advice. Learn more here.

Topics on this page can be viewed by clicking on the headings below to display the information. You can also click on the “Expand All” link above to search the text using Ctrl+F (for Windows) or Command+F (for Mac).

The law and legal system are complex: this will take a while. Be sure to give yourself enough time to read the information below, understand how it applies to your situation, and know what actions you may need to take.

The process you will need to follow to resolve your separation issues will depend on different factors, including if you were married, if you have children, and many more.

Your resolution options for all of your legal issues will be described in detail on the Information Pages for each topic. Below is a list of the Information Pages that deal with different aspects of relationship breakdown. See the Law tab of this Information Page for an introduction to which topics you will need to consider, and which Information Pages you should read.

Remember

For child and support-related issues, married spouses can choose between the federal Divorce Act and the Alberta Family Law Act. For detailed information about what to consider when making this choice, see the “Using the Divorce Act or the Family Law Act: What to consider” section of the Ending a Married Relationship Information Page.

If you were not married, or married but choose to use the Family Law Act

If you were married and choose to use the Divorce Act

Other considerations when separating

Last Reviewed: May 2016

Provincial Court

Queen's Bench

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