Property Division for Married Spouses

Law

Married spouses who are separating can use Alberta’s Matrimonial Property Act to deal with property division matters. See the sections below to learn more about:

  • Who can use the Matrimonial Property Act
  • Financial disclosure
  • How different types of property are treated under the Matrimonial Property Act
  • Tracing property
  • Dividing debts
  • The matrimonial home (including exclusive possession and dower rights)
  • Determining the value of the property
  • The different rules for on-reserve property
  • Solving property division matters out of court
  • Going to court for property division (including time limits to apply)

Choose the Process tab above for checklists, forms, and detailed information about the court process.

Be Aware

The Matrimonial Property Act may not apply to you. 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: February 2017
Who is this Information Page for?

This Information Page contains information about the law of property division for spouses who were in a married relationship. The law that applies in this situation is Alberta’s Matrimonial Property Act.

This Information Page does not apply to couples who were not married. If you were in a non-married relationship and wish to divide your property, see the Property Division for Unmarried Couples Information Page. To be clear, if you were not married, Alberta’s Matrimonial Property Act does not apply to you: it only applies to people who were married.

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

In general, the law and process on this Information Page is about people who live in Alberta. It may not be possible for your matter to be heard in Alberta if:

  • any of your issues will involve courts in another province (or have already); or
  • any of the parties live in another province, or have been “ordinarily resident” outside of Alberta during the past year.

For more information about out-of-province issues, including how “ordinarily resident” is defined, see the Family Breakdown and Out-of-Province Issues Information Page.

If you live on-reserve, you will need to review the information on the Family Breakdown if You Live on Reserve Information Page.

You are currently on the Law tab of this Information Page, which has information on what the law says about the division of matrimonial property in Alberta. For information on the process you need to follow to ask for what you want, click on the Process tab above. 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.

The first topic is What the words mean. Please read this section even if you think you already know what the words mean. In order to understand the resources on this page, you will need to understand the legal terms.

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. (Be aware that some of the resources we link to below will use the term “spouse” to describe both married partners and unmarried partners.)

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.”

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.

exclusive possession

The right of one spouse to have sole possession of the matrimonial home (which means that the other spouse cannot continue living there). This can also include household goods.

property (also called “assets”)

Something that you own. Property can be:

  • “personal” property, such as bank accounts or vehicles; or
  • “real property,” such as land, a house, or a condominium.

debt

Money that is owed to another person, bank, or company. For example:

  • a loan;
  • the amount owed on your credit cards; or
  • something you are still making payments on (such as the living room furniture that you have another 18 months to pay off).

The state of owing money is called being “in debt.”

financial disclosure

The process of giving your financial information to someone else. This information usually includes such things as:

  • tax returns
  • income information (such as pay stubs)
  • a list of property you own (including the current value)
  • statements about investments you have (including the current value)

Depending on the situation, it may include much more information.

When separating or divorcing, parties give each other this information so that fair solutions can be reached. If you are going to court about child support, spousal/partner support, or division of property, this information will be required by the court.

valuation

A set of procedures used to estimate the value of something, such as business or a pension plan.

independent legal advice

Guidance from a lawyer about a contract a person wants to sign before he or she signs the contract. The lawyer makes sure that the person understands the law and legal consequences of the contract, including the person’s rights and responsibilities. In order for the advice to be “independent,” both you and the other party must have your own lawyer. You cannot both go to the same law firm.

plaintiff

The person who files a Statement of Claim in the Alberta Court of Queen’s Bench. For the purposes of this Information Page, that means either the “Statement of Claim for Divorce” or the “Statement of Claim for Divorce and Division of Matrimonial Property.”

defendant

The spouse of the person who files a Statement of Claim in the Alberta Court of Queen’s Bench. For the purposes of this Information Page, that means either the “Statement of Claim for Divorce” or the “Statement of Claim for Divorce and Division of Matrimonial Property.”

the pleadings

The information contained in:

  • the documents filed by the party starting a court action; and
  • the documents filed in response by the other party.

For example, the Plaintiff’s Statement of Claim and the Defendant’s Statement of Defence are the “pleadings” in a court action. They describe what both parties are asking for from the court.

“swearing” or “affirming” something

When you “swear” something, you are making a promise that what you are saying is true. This promise is often made over an object that is holy to you (such as the Bible, the Torah, or the Koran), or in the name of a deity you believe in (such as God or Allah). This is also called taking “an oath.” For people who do not want to swear over a holy book or in the name of a deity, this promise is called “affirming.”

If you swear that something you wrote is true, it may be called a “sworn” statement.

application

A court process where one party (the “applicant”) asks the Court for something, and gives the Court evidence about why he or she should get it. As part of the process, the “other side” (the “respondent”) can show the Court evidence about why the applicant should not get what he or she is requesting. The respondent may even ask for something different. The applicant could then respond to that request.

Applications are smaller, individual parts of the court action, but they are related to an ongoing case. One case may have several applications. Court hearings (when the parties appear before a judge) are part of the application process, but not all applications involve going to court hearings: it is possible for the parties to come to an agreement before the hearing.

Applications can deal with:

  • preliminary matters (for example: whether the Alberta courts have the authority to hear a case);
  • temporary matters (for example: how much child support will be paid for now, while one parent looks for a job);
  • procedural matters (for example: what a person should do if they cannot find the other party to give them a copy of all the paperwork);
  • “pre-trial” matters (for example: where the children will live for now, until there is a trial on the bigger of issue of whether one parent can move away with the children); and
  • things that come up after the trial that are still related to the case.

The Court’s decision in an application is called an “order” and is generally not the final decision in the matter. Usually, a final decision comes only after trial. That decision is called a “judgment.” However, many parties choose to never go to trial. Instead, they just accept the Order(s) granted in applications as a permanent solution, without ever getting a final “judgment.”

applicant

The person who starts a court application to ask the Court to do something. The applicant is one of the “parties” in a court application.

respondent

The person who has a court application brought against him or her. The respondent is one of the “parties” in a court application.

The laws that may apply to you

As you work through your property division issues, you may wish to read the laws (also called “statutes” or “acts”) that apply. The laws included on this Information Page are:


Web Alberta Rules of Court
Government of Alberta
English

Web Divorce Act (and associated Regulations)
Government of Canada
English

Web Dower Act (and associated Regulations)
Government of Alberta
English

Web Indian Act
Government of Canada
English

Web Canada Pension Plan (R.S.C., 1985, c. C-8)
Government of Canada
English

Web Pension Benefits Division Act
Government of Canada
English





Web Public Sector Pension Plans Act (and associated Regulations)
Government of Alberta
English
Public sector pension plans are listed as “regulations” with this Act.

Web Pension Benefits Standards Act
Government of Canada
English

Web Judicature Act (and associated Regulations)
Government of Alberta
English

When reading laws, you also need to know about the “regulations” associated with those laws. Each of the links above takes you to a page that lists the laws as well as the regulations that go with them. For more information on laws and regulations, see the Our Legal System Information Page.

If you plan on representing yourself in court, you will also need to know about “case law.” In general, “case law” refers to the idea that it is up to judges hearing individual cases to decide:

  1. the exact meaning of the words in the laws (called “interpretation”), and
  2. how that meaning applies to the people in those cases (called “application”).  

This means that what happens in other cases can affect what happens in your case. It also means that there are cases decided before that govern how cases are decided now. For more information on case law, see the Our Legal System Information Page and the Educating Yourself: Legal Research Information Page.

The following resource lists some of the leading cases in family law.

Alberta’s two-court system

In some provinces, any “family law” matter goes to a specialized family court: everyone is in the same court. This is not the case in Alberta. In Alberta, for many separation and divorce-related matters you can choose one of two courts. Your choice will depend on what law you use and exactly what you are asking for.

Tip

You do not have to go to court to solve your separation issues. There are many ways to resolve legal issues out of court. These are often faster and less expensive than going to court. For more information, see the “Out of court resolution options” section below.

The division of matrimonial property can only be dealt with in the Court of Queen’s Bench (QB). Similarly, the “divorce” itself can only be given by QB (and if you want the “divorce” part, you must involve the Court). This will likely mean that you will want to deal with all of your separation and divorce-related matters at the same time, in QB.

Be Aware

The Alberta courts prefer to keep all matters relating to one family within one court. As a result, you may be encouraged to handle all of your issues in one level of court.

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.

If you are planning on leaving a violent situation and deciding which steps to take first, see the Safety Planning Information Page.

Be Aware

Alberta’s Residential Tenancies Act has recently changed to allow victims of abuse to break their lease early, without a financial penalty. For more information, see the section below called “The matrimonial home: Exclusive possession, maintaining the home, dower rights, and rental issues.”

Many of the resources on this Information Page have both general family law information as well as how that information applies in situations of family violence. Where appropriate, resources specific to situations of domestic violence are noted with this icon:

Family Violence

 

Be sure to read these resources thoroughly, because it is sometimes difficult to understand what to do in situations of violence without understanding the legal picture in general.

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.

At the start: Breakup has just occurred

Sometimes, a separation can come as a bit of a surprise. Perhaps your spouse 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. For detailed information on things to consider when family breakdown has just occurred, see the Immediate Issues for All Separating Couples Information Page.

The following resources are good overviews of things to consider when leaving a relationship.

Web Getting separated or divorced
Government of Canada
English

Web Se séparer ou divorcer
Government of Canada
French

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.

You can agree

Although it may not seem like it right now, you can come to an agreement with your spouse. Going to court is not a requirement. For more information, see the “Out of court resolution options” section below.

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 your life right now, or even in the next month. Temporary, or “interim,” arrangements can be made. This includes living arrangements (such as “exclusive possession” of the home). If you and your spouse cannot agree on initial arrangements, you can get an interim court order that makes arrangements for the first few weeks or months. This can be done quite quickly. For more information about going to court to get interim use of property, see the Process tab of this Information Page.

Get copies of the paperwork

Before you leave, you may wish to make sure that you have copies of any documentation related to your assets and debts.

For example:

  • bank account information,
  • bank statements,
  • loan statements,
  • copies of your home’s last tax assessment,
  • both spouses’ most recent tax returns,
  • income information, and
  • any other relevant documents.

In order to address the issue of property division, you will need all of the financial statements, and it may be easier for you to get them now so that you are ready.

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.

Learn

Take the time to learn about the law that applies. It is important. Consider talking to a lawyer (or legal advocate) about your options and how best to proceed. See the Community Legal Resources & Legal Aid Information Page and the Working with a Lawyer Information Page for more information about your legal options.

The following resources provide information about things to consider.

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

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

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

Web Family Law (Available in Arabic, Chinese, English, Farsi, Nepali, and Tagalog)
Legal Information Society of Nova Scotia
Arabic, Chinese, English, Farsi, Tagalog, Other languages
This resource is from outside Alberta. Learn more here. See “Separation & Divorce.” This resource will automatically download: only look at this on a safe computer.

PDF Divorce & Your Credit
Consolidated Credit Counseling Services of Canada, Inc.
English

Video How do I protect myself during separation? - Divorce Planning
AdviceScene (via YouTube)
English
This resource is from a private source outside Alberta. Learn more here.
Protecting the property

As you will learn below, the property you and your spouse own fits into different “categories.” These categories will determine how the property will be divided between you, or if it will be divided at all. However, at the beginning of the separation process, it is not always clear what property belongs in each category.

For this reason, it is a good idea to protect all of your property from any changes (such as selling it, giving it away, or putting it at risk in any way) until you and your spouse reach an agreement or get a court order that clearly lays out who gets which property. By doing this, you and your spouse can save a lot of time and money later if things get more complicated than they seem at the beginning.

It is also important to understand that, once a matrimonial property action has been started, it is against the law for a spouse to sell, give away, or transfer any property, or to mortgage any property, without the consent of the other spouse or a court order. In addition, even if an action has not been started, if your matter later ends up in court, and you are found to have attempted to get rid of or hide matrimonial property, the judge may take these actions into consideration when deciding your case.

Despite this, sometimes spouses will try to hide, damage, sell, or transfer property. Separation and divorce can be very difficult and emotional. People may make poor decisions that they otherwise would not make. As a result, it is always best to take steps to protect property until an agreement is reached or a court order is made. Otherwise, property may be given away, sold, damaged, reduced in value, used as collateral for a loan, moved out of the province, or seized by a creditor or trustee in bankruptcy.

Be Aware

Protecting property also includes making sure that you do not decrease the value of any assets. For example: perhaps now is not the best time to place or keep matrimonial assets in risky investments.

There are steps you can take in order to protect your property: some you can do yourself without the involvement of the Court, others do involve the Court. For more information on these steps, see the Process tab of this Information Page.

For more general information about protecting assets, see the following resources.

Web Protecting Property & Debt in Family Law Matters
Clicklaw
English
This resource is from outside Alberta. Learn more here. This resource provides a good summary of steps, but this is not Alberta law. Be sure you understand how the law applies in Alberta.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
See p. 15.
Some common misconceptions about property

It’s not just assets: Property includes debts

When people think of “property” they often think of the “stuff” they own—their assets. But property is not just assets. Property, including the property that is to be divided between separating spouses, also includes debts.

Be Aware

In some cases, debts created after separation may also be considered “matrimonial property.” For more information, see the “Debts” section below.

“What’s mine is mine”: The issue of whose name is on the property

Married people have many ways of setting up their financial lives. For example: some assets or debts may be in both spouses’ names. Or, an asset or debt may be in only one of the spouse’s names. There are many reasons for these differences, such as tax issues, differences in credit ratings, and sometimes just convenience.

When couples separate, some people believe that if an asset is in their name, that asset “belongs” to them. Similarly, a person may believe that a debt in his or her spouse’s name is that spouse’s problem. This is not the case. When property is divided, all assets and debts are looked at together, regardless of whose “name” is on it.

“It’s my property (too), so I can do whatever I want”: Post-separation actions

Some people believe that, after the spouses have separated, they can do whatever they want with the property, especially in situations when the property is in only one spouse’s name. That is not the case. Just because you are separated does not mean that you can start dealing with the property without the other spouse’s consent. In fact, doing so can get you into trouble later (which may cost you even more money).

Once you are separated, you have to be more careful than ever with your property. This is not about “who owns what,” but rather about how to divide the property in the fairest way possible. And, as you will learn below, if your case goes to trial, the Court will look all property owned at the date of trial; this can include property that was bought after separation.

The same is true on the topic of debt. Sometimes, after learning that debt is divided between the spouses, a spouse might be tempted to increase debts. For example: a person might use the spouse’s credit card for large purchases, or take money from a joint line of credit, thinking that the other spouse will have to pay half of that debt. This is not necessarily the case. Again, the issue is fairness, not whose name it is in. Although there are general rules (described in more detail in the “Categories of property” section below), what matters most are the specific facts of the situation, and inappropriate behaviour will cause problems later.

Be Aware

Once an action has been started, neither spouse is allowed to sell, give away, transfer, or mortgage any property without either the consent of the other spouse or an order of the Court. In fact, it is against the law to do so.

Property is separate from other divorce-related issues

Sometimes, separating spouses may try to use property or give up assets in order to affect what happens with other issues related to the separation.

For example: one spouse may suggest that the other spouse get all of the property, and in exchange, the spouse without the property will pay less spousal support. Although this can be done, it is important to understand that this may not work out in the long run. Property and spousal support are different issues, and they have different purposes. Mixing them up can create quite a mess. Before agreeing to any such arrangement, be sure to get legal advice.

Be Aware

This sort of arrangement is difficult to make with child support. This is because child support is the right of the child. Parents cannot negotiate away the rights of the children.

More information

For more information about the many things that are misunderstood about the division of matrimonial property, see the following resources.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English

PDF Matrimonial Property - General Information
Government of Alberta
English

Audio/Web Division of Matrimonial Property
Calgary Legal Guidance
English

Web Matrimonial Property
Student Legal Services of Edmonton
English

Web Matrimonial Property
Centre for Public Legal Education Alberta
English

Video Divorce 101 in Alberta
Native Counselling Services of Alberta (via YouTube)
English
Start at 4:45.

Web Separation & Joint Debt
Divorce Canada
English
This is a private source. Learn more here.

Web What happens to matrimonial property after a separation?
Kirk Montoute LLP
English
This is a private source. Learn more here.

The following resources are not available online. The links below will give you a preview of the resource, and you can find the full text at libraries across Alberta. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Surviving Your Divorce: A Guide to Canadian Family Law
Michael G. Cochrane
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See Chapter 5.

Book Top 7 Property Issues (article included in "Issues in Matrimonial Property")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library.

Book Alberta: Marriage, Separation, and Divorce: Understand Your Rights
Jean McBean, QC
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See Chapter 5.
If there was a domestic contract (pre-nuptial or marriage agreement)

A pre-nuptial agreement is a contract between two people who are planning on getting married in the near future. In this agreement, the parties can address many issues. For example, it can include roles and responsibilities while they live together, and what will happen if they later separate. ​​​​​​ If the parties are already married when they enter into the contract, then it is called a marriage agreement.

In general, if you and your spouse have a pre-nuptial or marriage agreement 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 spouse 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.

On the topic of the division of matrimonial property, any pre-nuptial or marriage agreement must meet certain requirements set out in the Matrimonial Property Act in order to be binding. Specifically:

  • the agreement must be in writing,
  • the agreement must have been freely agreed to, and
  • each spouse must have had independent legal advice (that is, each with their own lawyer) and signed the agreement in front of their lawyer. Each lawyer will then give a “Certificate of Independent Legal Advice.”

For more information about how pre-nuptial or marriage agreements are treated and the law around setting them aside, see the Relationship Breakdown if You Had a Domestic Contract Information Page.

What does the Matrimonial Property Act do?

The Matrimonial Property Act (MPA) is law that sets out rules for how different categories of property are to be divided when a marriage breaks down. Its purpose is to make sure that property is divided fairly between the spouses when they separate. See the “Categories of property and how they are treated under the law” section below for more detailed information about this process.

Are we eligible to use the Matrimonial Property Act?

The Matrimonial Property Act applies only to people who are married to each other or are divorced from each other. It does not apply to people who were in an Adult Interdependent Relationship. If you were not married and want to divide your property, see the Property Division for Unmarried Couples Information Page. If you are not sure if you were married or not, see the Getting Married Information Page.

In addition to being married (or formerly married), if you wish to apply to a court for a division of matrimonial property, the person asking the court for the division must show the Court that at least one of the following conditions applies:

  • both spouses (or former spouses) currently live in Alberta;
  • if both spouses (or former spouses) do not currently live in Alberta, their last joint residence was in Alberta;
  • if the spouses (or former spouses) did not live together since the date of their marriage, both of them lived in Alberta at the time of the marriage; or
  • a Statement of Claim for Divorce has been filed in Alberta (for more information about what this is, see the Ending a Married Relationship Information Page.
Basic requirements to apply under the Matrimonial Property Act

Before you can ask the Court for an order dividing your property under the rules of the Matrimonial Property Act (MPA), you must be separated or divorced from your spouse. More specifically, you can bring an MPA application to Court if one of the following applies to your situation:

  • you and your spouse have been living “separate and apart” for more than one year;
  • you and your spouse have been living “separate and apart” for less than one year, if there is no hope of being reunited (which you will have to swear in your paperwork);
  • you apply at the same time as applying for a divorce, annulment, or declaration of irreconcilability; or
  • you apply within 2 years after your divorce judgment, annulment, or declaration of irreconcilability is granted.

For more information about applying for a divorce or annulment and about what it means to live “separate and apart,” see the Ending a Married Relationship Information Page.

Be Aware

There are other things in the MPA that you can ask for even if you do not meet the requirements listed above. For example: you may still be able to apply for exclusive possession of the matrimonial home. For more information, see the rest of this Information Page.

Time limits to apply under the Matrimonial Property Act

There are also time limits for when you can start an MPA application—after these limits, you will no longer be allowed to start the application.

  • If you and your spouse are separated but have not yet started an action for divorce, annulment, or declaration of irreconcilability, you must make your MPA application within 2 years of the date you separated (once that time passes, you will have to start a divorce action in order to be allowed to start an MPA action).
  • If you and your spouse are separated and you have started an action for divorce, annulment, or declaration of irreconcilability, you must make your MPA application within 2 years of the date of your judgment in that divorce action.
  • If you and your former spouse are already divorced, you must start the MPA action within 2 years of the date of the Divorce Judgment (not the date of the Divorce Certificate—to learn about the difference see the Process tab of the Ending a Married Relationship Information Page.
  • If you think that your spouse (or former spouse) is giving or selling property to someone else in order to avoid the rules of the MPA, you must start the action within 1 year of the date you first suspected he or she sold or gave the property away.
  • If your spouse (or former spouse) has died, you must start your action within 6 months of the grant of probate or grant of administration of the estate. However, you can only do this if you met all of the requirements to start the action just before your spouse’s death—see the “Basic requirements to apply under the Matrimonial Property Act” section above.

For more information about the time limits involved in starting a Matrimonial Property Act application, see the following resources.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
See p. 7.

PDF Matrimonial Property - General Information
Government of Alberta
English

Audio/Web Division of Matrimonial Property
Calgary Legal Guidance
English

Web Matrimonial Property
Student Legal Services of Edmonton
English
See “Procedure.”
Disclosure

In order to divide property, both spouses must be fully aware of all of the property in question, and the value of that property. In many cases, spouses are not aware of all of that information, or may try to hide or secretly deal with property.

In order to help ensure fairness, the Matrimonial Property Act (MPA) requires that there be complete “disclosure” between the spouses. This means that the spouses must identify all of the property owned (whether it is owned jointly or individually) and share property and financial information with each other.

Examples of the kind of assets that need to be disclosed include:

  • bank accounts,
  • Registered Retirement Savings Plans (RRSPs),
  • pension plans,
  • household contents,
  • jewellery,
  • cars, trucks, and other vehicles,
  • real estate,
  • farming operations,
  • life insurance policies that have a cash value, and
  • businesses.

Examples of the kind of debts that need to be disclosed include:

  • mortgages,
  • lines of credit,
  • loans (including bank loans, vehicle loans, student loans, and buy-now-pay-later loans), and
  • amounts owing on credit cards.

For more detailed information about disclosure, including the paperwork you will need to fill out, see the Process tab of this Information Page.

Be Aware

Disclosure can be complicated. As you will learn below, the issue of the date at which property is valued is also important (is it as of the day you separated? or the day you are in court?), and that date may not get decided for a while. As a result, you may have to provide financial disclosure more than once. This is normal. Also, as you get deeper into the process of figuring out how property will be divided, you may find that more detailed information is needed, or historical information. This too is normal.

To provide disclosure, the MPA requires that each spouse provides a sworn statement of all property he or she owns alone or with another person. That statement must be given to both the Court and the other spouse.

The statement must list:

  • all property owned by each spouse, either individually, with the spouse, or with someone else;
  • whether that property is located in Alberta, or outside of Alberta;
  • whether it was bought, or a gift from someone else, or acquired in some other way;
  • property that was sold or given away during the 1 year before the MPA application was filed; and
  • all debts acquired during the marriage (including individual debts and joint debts).
Be Aware

Information about assets and debts must include everything, wherever they are located. This includes those that are outside of Alberta or Canada.

For more information about disclosure, see the following resources.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
Start on p. 9.

Web Financial Disclosure in Family Law Cases, Don’t Hide; It’s Best to Provide!
Centre for Public Legal Education Alberta
English

Web Financial Disclosure to the Ex: Do I Have to Report All Self-Employment Income?
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta. Learn more here.
​​ 
PDF Financial Disclosure Required in Alberta
Island Family Lawyers
English
This is a private source. Learn more here.

PDF Financial Disclosure in Divorce: How Much is Enough?
Moe Hannah LLP
English
This is a private source. Learn more here.

Web Financial Disclosure Obligations During Separation
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Signs that your spouse is hiding assets
Kirk Montoute LLP
English
Categories of property and how they are treated under the law

Under the Matrimonial Property Act (MPA), there are 3 categories of property to be considered when a marriage breaks down. Each category is treated differently under the law.

These categories are:

  1. exempt property (also called section 7.2 property);
  2. shareable property (also called “divisible” or “section 7.3” property); and
  3. matrimonial property (also called “equally shared” or “section 7.4” property).
Remember

Once an action has been started, neither spouse is allowed to sell, give away, transfer, or mortgage any property, no matter what category you think the property belongs to, without either the consent of the other spouse or an order of the Court. In fact, it is against the law to do so.

Exempt property

As a starting point, “exempt” property is considered not to be part of the property that is divided between the spouses. In other words, the property (or its value) is seen as having always belonged to only one of the spouses, and unless something happened to turn that property into “shareable property” (see below), it should still belong to that same spouse.

On the other other hand, if the property is turned into shareable property (for example: if it is put into joint names), the exemption will be reduced. Shareable property is explained more below.

Exempt property includes:

  • property individually owned by either spouse before the marriage;
  • property that was received after the marriage, by one spouse, as a gift from a third party;
  • property that has been inherited after the marriage by one of the spouses;
  • a damages award or settlement (for example: if one spouse was injured in an accident); and
  • proceeds of a tort-based insurance policy (for example: if one of the spouses was in a car accident and that spouses’s own insurance policy paid him or her during the recovery time). Torts are certain kinds of civil law (in other words, not criminal law) where the loss or harm arises from another person’s act, or a failure to act, and the victim can then sue the person who did them wrong.

If you are claiming that a particular asset is exempt property, you must be able to show that the particular asset either:

  • still exists in the same form (for example, a bank account that still exists); or
  • if does not still exist, that it can be “traced” into an existing asset (for example: the bank account was closed but all of the money in it was put into an RRSP in the same name). There is more information about this in the “Tracing property” section below.

If you can show this, then the value of that asset (either at the date of the marriage or at the date you got the asset, whichever is later) is not included in the property division between the spouses.

Examples

  • During the marriage, you received an inheritance of $50,000, which was put into a savings account in your name alone. It is still in that same savings account.The $50,000 is exempt from distribution, but the interest earned will be divisible—see “Shareable property” below.
  • Before your marriage, you inherited an antique from your great aunt. When you got it, it was worth $50,000. You still have it. Since the date of the marriage, the market value of the antique has not gone up. The antique belongs to you and will continue to belong only to you, it will not be divided under the MPA.
  • On the other hand, let’s say you sold that antique for $50,000, and you put the money into joint names (resulting in the antique becoming shareable property). Your exemption would be reduced to $25,000, and the other $25,000 would be treated as shareable property (which is to be divided “fairly” between you). This means that you would likely also get a portion of the remaining $25,000, but not all of it).

For more examples, see the following resource.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
Start on p. 10.

Sometimes, property that you came into the marriage with may be used to get new property, and that new property was never mixed with the shared property. In such a case, the new property may also be exempt. To qualify as exempt, you have to be able to “trace” the original pre-marriage property to the new property. For more information, see the “Tracing property” section below.

Shareable property (also called “divisible property”)

“Shareable property” is the property that will be divided fairly (but not necessarily equally). In other words, exactly how it will be divided depends on what the court considers fair in the circumstances.

There are 4 kinds of property that are “shareable”:

  1. the increase in value of exempt property during the marriage;
  2. property bought using income received from exempt property (such as profits from a rental property—see the examples below);
  3. property that was acquired by either spouse after separation, but before the matrimonial property action is settled (which could even include property acquired after a divorce is granted); and
  4. property that was a gift from one spouse to the other.

Examples

  • You owned a condo before you were married and at the date of marriage it was worth $200,000. During the marriage, you kept the title in your own name. At the date you separated, the condo was worth $250,000. Because of your exemption, you would keep the first $200,000. The $50,000 increase in the value of the condo would be shared between you and your spouse.
  • During the marriage, you rented out your condo. As a result of this rental, every month you had a profit of $300. You and your spouse saved that money and used it to buy a car. That car is shareable property.

For more examples, see the following resource.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
Start on p. 11.

There are several things that the Court must consider when making its decision about how to divide shareable property. These include:

  • the contribution made by each spouse to the marriage and to the welfare of the family;
  • the length of the marriage;
  • any contribution made by a spouse to acquiring the property;
  • any contribution made by a spouse in taking care of the property;
  • any contribution to a business or farm that is owned by one or both spouses;
  • the income, earning ability, debts, property, and other financial resources of each spouse;
  • whether the property was bought when the spouses were living separate and apart;
  • the terms of any agreement between the spouses;
  • a previous division of property between the spouses;
  • whether either of the spouses had made a large gift to any third parties, or sold any property for less than it was worth;
  • whether a spouse has damaged any property in order to financially harm the other;
  • any tax issues that may result from the sale or transfer of property; and
  • any previous court order.

Matrimonial property (also called “equally shared property”)

“Matrimonial property” refers to all property that is not in either of the above 2 categories. It includes all property and debts acquired by the spouses (either jointly or individually) during the marriage, and even after separation.The starting point of the MPA is that the matrimonial property will be shared equally (50/50) when the marriage breaks down.

However, if the spouses have valid reasons why this property should not be divided equally, the Court will consider the possibility of unequal division. However, an unequal division of matrimonial property is not common, and there will need to be a very good reason for a Court to grant it. For information about what the Court considers in this situation, see the “Equal division or unequal division: How is it decided?” section below.

Personal belongings

Reasonable personal belongings are normally not considered to be assets in any of the above 3 categories, and belong only to each spouse. Some things are relatively simple and obvious: toothbrushes, hair brushes, clothing, shoes, eyeglasses, and your cell phone. What a “reasonable personal effect” is may be hard to figure out in some cases, especially if the item in question is valuable (like jewellery, a laptop, or a “collection”). Legal advice is often helpful to assist you in deciding what items are “personal.”

Property from living together before marriage

Sometimes, spouses lived together before they were married. The Matrimonial Property Act does not apply to property that they got before the marriage. Instead, the parties must use the rules that govern property division for non-married partners.

For example:

  • Drew and Jordan lived together for 10 years before they got married. In that time they had children.
  • Early on in the cohabitation, Drew bought a house and that house was put in only Drew’s name.
  • Jordan did not work outside of the home, but did many renovations in the home and was a stay-at-home parent.
  • After being married for 10 years, Drew and Jordan are now separating.
  • They still live in the house. It is still in Drew’s name.
  • Drew and Jordan are now going to court to settle their property division issues.
  • The Court will look the value of the home at the date of marriage and the increase in the value of the home between the date of marriage and the date of the hearing: that amount will be separated according to the rules of the Matrimonial Property Act.
  • For the increase in value between the date that the house was bought and the date of the marriage, the Matrimonial Property Act will not apply.
  • If Jordan wants a portion of that pre-marriage increase in property value, then Jordan would have to make a claim for “unjust enrichment,” according to the rules that relate to non-married couples.

For more information about property division for unmarried partners, see the Property Division for Unmarried Couples Information Page.

More information about the categories of property

For more information about the categories of property, see the following resources.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
Start on p. 10.

PDF Matrimonial Property - General Information
Government of Alberta
English

Audio/Web What Property you share as Matrimonial Property
Calgary Legal Guidance
English

Web Matrimonial Property
Student Legal Services of Edmonton
English
See “Division of Property.”

Web Matrimonial Property
Centre for Public Legal Education Alberta
English
 
Web Some Basic Information on Dividing Matrimonial Property
Patriot Law Group
English
This is a private source. Learn more here.

Web Matrimonial Property Division
O'Neil Law Office
English
This is a private source. Learn more here.

Web Family Law (Available in Arabic, Chinese, English, Farsi, Nepali, and Tagalog)
Legal Information Society of Nova Scotia
Arabic, Chinese, English, Farsi, Tagalog, Other languages
This resource is from outside Alberta. Learn more here. See “Separation & Divorce.” This resource will automatically download: only look at this on a safe computer.

The following resources are not available online. The links below will give you a preview of the articles, and you can find the full articles at libraries across Alberta. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Family Money: Gifts or Loans (article included in "42nd Annual Refresher, Family Law")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Book Top 7 Property Issues (article included in "Issues in Matrimonial Property")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library.

Book Exemptions (article included in "Matrimonial Property Division")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
“Tracing” property

When you “trace” property, you are trying to show that property that was originally in the “exempt” category (see the “Categories of property” section above) should still be exempt even though it now exists in another form. To trace the value, you must identify the “substitute” of the original asset you are claiming—that is, what the original exempt asset “turned into.” Any exemption you are claiming must be traced to an identifiable asset.

Example: you came into the marriage with a car in your name alone. After you married, you sold the car, and you put the proceeds into an RRSP in your own name. That money is still there, and you have never used any of it for family purposes.

Tracing can become very complex, and there are two things to keep in mind:

  1. If you turned the property into shareable property (this is also called “co-mingling”), the Court will assume that you wanted to gift half that amount to the marriage, and half of your exemption will be lost. Using the above example: during the marriage, you sold the car for $6,000 and put the money into a joint bank account with your spouse. That bank account will now most likely be considered shareable property. This means that your exemption will only be 50% of it ($3,000) and the other $3,000 will be divided “fairly” between you.
  2. If the exempt asset has decreased in value over the marriage (this is also called “depreciated”), so has your potential exemption. Using the above example: during the marriage, you sold the car for $6,000 and put the money into a high-risk RRSP in your name only. Since then, the markets have crashed and your RRSP is now only worth $3,000. If you get an exemption, it would be for $3,000 (not $6,000).

As you can imagine, tracing can become quite complicated and may not be easy to show to the Court. If this issue affects you, consider getting legal advice. For more information, see the Working with a Lawyer Information Page.

For more information about tracing property, see the following resources.

Web Tracing Original Property to Replacement Property: What Evidence is Required?
ABlawg
English
This resource can be a challenge to read. Learn more here.

PDF Matrimonial Property - General Information
Government of Alberta
English
See p. 3-4.

Web What property is exempt from division in an Alberta divorce?
Kirk Montoute LLP
English
This is a private source. Learn more here.

PDF Three issues arising from the property divisions sections of the new Family Law Act
Justice Education Society
English
This resource is from outside Alberta and can be a challenge to read. Learn more here. Start on p. 18.

Web Cartier v. Cartier – Deductions and Exclusions in the Equalization of Net Family Properties
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Exemptions (article included in "Matrimonial Property Division")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
Debts

As noted above, property is not just assets. Property, including the property that is to be divided between separating spouses, also includes the value of debts. This means that when you are dividing your property, you also have to account for the debts. In the end, both spouses should end up in a financially “equal” position. For more information, see the following resource.

Web Do not underestimate the heavy impact of debt in divorce
Kirk Montoute LLP
English
This is a private source. Learn more here.

When people think of their matrimonial debt, they usually think of the debts that they acquired during the marriage. However, depending on the circumstances, a debt that was acquired after the date of separation could also be considered matrimonial property.

For example:

  • Hayden and Reese are separating.
  • They have 4 children.
  • Hayden gets an order of exclusive possession of the home and everything in it.
  • Reese finds an apartment but has to buy all kinds of furniture, including 4 kids’ beds for when the children visit (as the family furniture is still in the family home and being used by Hayden and the 4 children).
  • In order to get all of this new furniture, Reese must take on a $5,000 debt.
  • In this case, the debt would likely be considered a “matrimonial debt,” as it was necessary for the family, and benefited the family.
  • Although Reese might have to “pay” the $5,000, that $5,000 would be taken into account in the division of matrimonial property.

Debts in only one spouse’s name

Legally, the person in whose name is on the debt is responsible for paying that debt. Therefore, if the debt is to be divided between the spouses, you will likely need an agreement or a court order to make sure that both parties pay their share of the debt.

For example:

  • Blair and Lane were married and are now divorcing.
  • When they add up all of their assets and debts, they learn that there will not be enough money to pay all of the debts, even if they sell all of their assets.
  • Specifically, there is a bank loan of $25,000 that cannot be paid because there is not enough money to do so.
  • Blair and Lane agree that the debt will be shared equally.
  • But, Blair and Lane never put that agreement in writing, nor do they get a court order that says that the debt will be shared.
  • That $25,000 loan is in Blair’s name only.
  • Lane never pays any part of the debt, and the payments fall behind.
  • As far as the bank is concerned, the responsibility to pay back the loan is Blair’s, because it is only in Blair’s name.
  • The bank will only go after Blair—not Lane.
  • As a result, Blair will want an agreement or a court order. That way, if Lane does not pay and the bank makes Blair pay, Blair can go after Lane to be reimbursed.

Pre-marital debts

Although it is rare, a pre-marital debt can also be considered in the calculations about matrimonial property. Specifically, some courts have said that the amount of pre-marital debt that was paid off during the marriage could be subtracted from the current spousal debt, so that neither spouse is burdened with the other’s pre-marital debt.

For example:

  • Leslie comes into the marriage with a $20,000 debt.
  • Cary has no debt at the date of the marriage.
  • During the marriage, the debt gets paid off.
  • The couple separates and it is determined that there is $50,000 in marital debt to be split equally between them.
  • As a starting point, the $50,000 marital debt would be split 50/50 (each spouse would be responsible for the repayment of $25,000).
  • However, if the facts and evidence of the case indicate that Cary paid at least half ($10,000) of the of the repayment of Leslie’s $20,000 pre-marital debt (that is now all paid off), the split may end up differently.
  • Instead, the court could decide that Leslie is responsible for $35,000 of the current marital debt (that is, $25,000 from the marital debt, plus the $10,000 that Cary paid toward Leslie’s pre-marital debt during the marriage), and that Cary is only responsible for $15,000 of the current marital debt (that is, $25,000 from the marital debt, minus the $10,000 that Cary paid toward Leslie’s pre-marital debt during the marriage).

This does not happen often, and some courts have ruled against such an approach. However, if the facts and evidence in the case are very specific and very clear, it is possible. A recent example is the following case.

More information

For more information about matrimonial debt, see the following resources, which are not available online. The links below will give you a preview of each article, and you can find the full articles at libraries across Alberta. Please note that these articles are sections in whole books. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Top 7 Property Issues (article included in "Issues in Matrimonial Property")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library. Start on p. 30.

Book Section 8 Factors and the Concept of Marriage Product (article included in "Matrimonial Property Division")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library.
Determining the value of the property

Once you have completed a list of property and you understand how each asset and debt is to be divided, you will need to place a value on each asset and debt. In many cases (such as bank accounts), the value is clear. Sometimes, however, determining value can be quite complicated.

Agreeing on the value

It is possible for you and your spouse to agree on the value of a piece of property. If you do agree, there will likely be no need to “prove” the existence and value of the asset.

If you disagree, and you ask the court to decide the value, you will need to prove the existence and value of the asset.

Be Aware

Sometimes, to avoid stress and conflict, spouses might be tempted to agree without first doing research or fully understanding their rights. This can often turn into bigger problems later. Before agreeing on a value, be sure you do some research and really know the value—just taking another person’s word for it is not the best approach.

Valuation date

Many separating spouses are unsure of the “date” at which the asset should be valued. Should it be the value of the property at the date of separation? What if you separated a year ago, and the value of property has changed since then?

The Courts have interpreted the Matrimonial Property Act to say that property is to be valued “at the date of trial.” If you end up going to trial, the Court will value your property using that date. However, not everyone goes to trial—in fact, most people do not. In addition, using the date of trial (if there is one) can have a huge impact on the matter. If the separation was a long time ago, the value of the property might have greatly increased or decreased since that date.

As a result, the issue of the valuation date is not the same for every couple. Sometimes, the couple can agree on a date to use. Often, couples choose the date of separation.

Or, the Court might decide that using the date of trial as the valuation date would lead to an unfair result if the property were to be divided equally. As a result, the Court can decide on an unequal division of property.

For example:

  • A couple separates.
  • There is a very long time between the date of separation and the date of trial.
  • Between the date of separation and the date of trial, the property has gone up a lot in value.
  • The increase of the value of the property is due only to the efforts of one of the parties. For example, if one spouse re-roofed the home and remodeled the kitchen, doing all of the work and paying for all of the supplies.
  • The value of the property used in the calculations must be the value at the date of trial.
  • However, a court can decide that it would be unfair to divide the property equally, because that would reward the spouse who did nothing to contribute to the increase in value.
  • As a result, the Court can decide to divide the property unequally, so that the value of the increase since the date of separation goes to the spouse who did all of the work to create that increase.

If the valuation date is a critical issue for you, you may wish to consider getting the advice of a lawyer, as this is a very complex area. For more information, see the Working with a Lawyer Information Page. If you must represent yourself, or if you wish to learn more about what kinds of divisions have taken place in other cases, you can learn how to search previous cases on the Educating Yourself: Legal Research Information Page.

For more information about the confusion around the valuation date required by the MPA, see the following resources.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
Start on p. 8.

Web What is a valuation date?
Long Family Law Group
English
This is a private source. Learn more here.

PDF Matrimonial Property Act: Valuation Date - Final Report
Alberta Law Reform Institute
English
This resource can be a challenge to read. Learn more here.

PDF Matrimonial Property Legislation: Valuation Dates
Alberta Law Reform Institute
English
This resource can be a challenge to read. Learn more here. Start on p. 8.

The following resource is not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Surviving Your Divorce: A Guide to Canadian Family Law
Michael G. Cochrane
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See Chapter 5.
Remember

As noted above in the “Disclosure” section, the date of valuation is closely tied to disclosure. As a result, when you look at different valuation dates, or change dates, you may have to provide financial disclosure more than once. This is normal. Also, as you get deeper into the process of figuring out the valuation date, you may find that more detailed information is needed, or historical information. This too is normal.

Taxes and fees

Sometimes, “division” will mean having to transfer or sell a piece of property. Depending on the kind of property, this can have tax consequences. When deciding the value of property, you must consider these tax consequences and plan accordingly. For example: if, as part of the property settlement, a Registered Retirement Savings Plan (RRSP) must be cashed in, you will not get the full amount—there will be taxes owing. The same is true of other kinds of property, such as a family cottage or investments—there may be taxes owing.

Similarly, there are sometimes “fees” that need to be considered and included in the calculations. For example, if you are selling the matrimonial home and there is a mortgage on the home, you will need to pay a fee to the bank for cancelling the mortgage before the end of the term. Be sure to check with the bank so you know what you can and cannot do, and what you may be charged for the actions you wish to take.

For more information about tax issues on separation and divorce, see the following resources.

Web The Tax Implications of Marital Breakdown
Centre for Public Legal Education Alberta
English

Web 5 Ways Divorce Impacts Your Taxes in Canada
Collaborative Practice Toronto
English
This resource is from a private source outside Alberta. Learn more here.

Web Divorce and Taxes
Canadian Divorce Services Inc.
English
This resource is from a private source outside Alberta. Learn more here.

Web The high tax cost of divorce & separation
MoneySense
English
This is a private source. Learn more here.

For tax information specific to high income property division, see the following resources.

Video Tax Implications of Divorce and Separation Canada
Madan Chartered Accountant (via YouTube)
English
This is a private source. Learn more here.

Web Minimize tax on marriage breakdown
Advisor Group
English
This is a private source. Learn more here.
Equal division or unequal division: How is it decided?

As explained above, both “shareable” and “matrimonial” property is to be divided between the spouses.

  • For “matrimonial” property, the starting position is that the property is to be divided equally between the spouses. However, if there is a good reason, a court can order an unequal division of matrimonial property, but this is not common.
  • For “shareable” property, there is no such starting position. The Matrimonial Property Act simply says that the property is to be divided in a way that is “just” and “equitable.” In other words, it is to be divided “fairly.”

In deciding exactly how matrimonial and shareable property should be divided, the Court must consider various factors, which are listed in section 8 of the Matrimonial Property Act. These include:

  • the contribution made by each spouse to the marriage and to the welfare of the family;
  • the length of the marriage;
  • any contribution made by a spouse to acquiring the property;
  • any contribution made by a spouse in taking care of the property;
  • any contribution to a business or farm that is owned by one or both spouses;
  • the income, earning ability, debts, property, and other financial resources of each spouse;
  • whether the property was bought when the spouses were living separate and apart;
  • the terms of any agreement between the spouses;
  • a previous division of property between the spouses;
  • whether either of the spouses had made a large gift to any third parties, or sold any property for less than it was worth;
  • whether a spouse has damaged any property in order to financially harm the other;
  • any tax issue that may result from the sale or transfer of property;
  • any previous court order; and
  • any other facts that the Court thinks are relevant.

The Court considers these factors in order to come up with what is the most “fair” division of property.

If you are asking that the Court grant an unequal division of property, you may wish to consider getting the advice of a lawyer, as this is a very complex area. For more information, see the Working with a Lawyer Information Page. If you must represent yourself, or if you wish you wish to learn more about cases in which an unequal division has been given and the reasons behind those decisions, you can learn how to search previous cases on the Educating Yourself: Legal Research Information Page.

For more information about the unequal division of matrimonial property, see the following resources.


Web Distribution of Matrimonial Property by Kurt E. Schlachter
Stringam Denecky LLP
English
This is a private source. Learn more here.

Web Cheating, Infidelity & Divorce
Andy Hayher (Vogel LLP)
English
This is a private source. Learn more here.

PDF The Matrimonial Property Act: A Case Law Review
Alberta Law Reform Institute
English
This resource can be a challenge to read. Learn more here. Start on p. 64.

The following resources are not available online. The links below will give you a preview of each article, and you can find the full articles at libraries across Alberta. Please note that these articles are sections in whole books. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Unequal Division of Matrimonial Property: Post-Hodgson (article included in "42nd Annual Refresher, Family Law")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library.

Book Section 8 Factors, Fairness and Fruit of the Marriage Tree (article included in "Property in family law")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library.

Book Top 7 Property Issues (article included in "Issues in Matrimonial Property")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library.

Book Section 8 Factors and the Concept of Marriage Product (article included in "Matrimonial Property Division")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library.
The matrimonial home: Exclusive possession, maintaining the home, dower rights, and rental issues

Often, the matrimonial home is the largest asset a couple has. In addition to its value, it is where the family lives, so it can have sentimental value.

Exclusive possession

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

In certain situations where the spouses 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 spouse 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 spouse 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 spouses;
  • keep that spouse from being in (or even approaching) the home; and
  • direct one of the spouses 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 spouses 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 spouses 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 spouse 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.

When considering whether to make an exclusive possession order, courts look at different factors, such as:

  • Whether other affordable housing is available and suitable.
  • The needs and best interests of the children. For example: What effect might a move have on them? How do they feel about moving or staying?
  • The children’s attachment to the neighbourhood. For example: How long have they have lived there? Is their school in the neighbourhood? Do their friends live nearby?
  • The financial positions of both spouses.
  • Any violence committed against the spouse or the children.
Be Aware

An order for exclusive possession does not mean that you keep the home or the assets in the house forever. You are also not permitted to sell, give way, or otherwise dispose of the house and its contents. You will still have to reach an agreement or have the court decide how your assets will be divided between you.

If you are granted an order for exclusive possession, you may have to cover the expenses related to the home. You may also possibly have to pay “occupation rent” to your spouse.

For more general information about exclusive possession, see the following resources.

Audio/Web Staying in Your Home during Marriage Breakdown
Calgary Legal Guidance
English

Web Matrimonial Property
Student Legal Services of Edmonton
English
See “Possession of the Matrimonial Home.”

Web Apply for an Exclusive Possession Order
Government of Alberta
English


Web Family Law (Available in Arabic, Chinese, English, Farsi, Nepali, and Tagalog)
Legal Information Society of Nova Scotia
Arabic, Chinese, English, Farsi, Tagalog, Other languages
This resource is from outside Alberta. Learn more here. See “Separation & Divorce.” This resource will automatically download: only look at this on a safe computer.

Exclusive possession when the family home is on-reserve

The Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) was passed several years ago. Under this law, a spouse who is living on-reserve will be able to apply for exclusive possession of the on-reserve family home. There are 2 different kinds of orders that can give exclusive possession:

  • In cases where there is family violence and there is a need for immediate protection, a spouse can apply for an Emergency Protection Order (FHRMIRA EPO).
  • For less urgent situations, a spouse can apply for an Exclusive Occupation Order (EOO).

However, before that can happen, judges to hear the applications must be appointed. This has not yet happened.

As a result, in Alberta it is currently not possible to apply for Emergency Protection Orders or Exclusive Occupation Orders under this law.

When the matrimonial home is a rental

You can get an order for exclusive possession for a house, apartment, or condo, whether it is owned or rented. However, the situation becomes more complicated in the case of rentals. This is because the laws for landlords and tenants (called “residential tenancy” law) may have an impact. Sometimes, this can affect what the spouses want to do.

Example 1:

  • Hunter and Jesse shared a rented apartment.
  • Both spouses have signed the lease.
  • Hunter wants exclusive possession of the apartment.
  • Because Hunter has signed the lease, Hunter is a “tenant,” and staying in the home does not conflict with the lease.
  • Jesse now leaves the home. However, Jesse will still be legally responsible for things like damages to the home. This is true even though Jesse no longer lives there.

Example 2:

  • Hunter and Jesse shared a rented apartment.
  • Only Jesse has signed the lease.
  • Hunter wants exclusive possession of the apartment.
  • Because Hunter has not signed the lease, Hunter may not legally be a “tenant.”
  • This may be a problem for the landlord, and it is unclear whether Hunter can be permitted to stay.
  • In addition, because the Jesse is on the lease, Jesse will still be legally responsible for things like damages to the home.

In either case, you may want to talk to your landlord so they know what is going on.

Family violence and renting your home

Changing the locks

The situation becomes even more complicated in situations of family violence. For example: victims may wish to protect their safety by changing the locks. However, under residential tenancy law, the landlord cannot change the locks without giving tenants a key. An abuser who has signed the lease is a tenant, so he or she must be given a key.

For this reason, if there is domestic violence, it is very important to make sure the Court knows about it. That way the Court can assess exactly what the exclusive possession order needs to say. You may also wish to ask the Court for some kind of protective order in addition to exclusive possession. For more information, see the Protective Orders Information Page.

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


Post-separation home repairs, insurance, mortgage, and property taxes

Who must pay for things like the house repairs, insurance, mortgage, and taxes on the matrimonial home until matters are resolved will depend on the facts of each situation. The spouses can come to agreement about this. If the spouses cannot agree, then the issue can be decided by a court (often as part of an order for spousal support).

Dividing the value of the matrimonial home

There are various ways to approach dealing with the matrimonial home.

For example:

  • One spouse may want to keep the home and the other will not. The spouse who wants to keep it can “buy out” the other spouse and keep the home.
  • The spouses may both want to keep the home, and they must make some really tough decisions.
  • The spouses may agree to simply sell the home and split the proceeds.

If one spouse wants to sell the home and the other does not, the spouse who wants to sell can make a court application to request that the Court decide whether or not the home should be listed for sale.

If the Court decides that the house should be listed for sale, the Court can also deal with other related issues, such as:

  • who will make decisions about listing the home and the sale price;
  • who will sign the documents needed for the sale (such as the listing contract and the sale contract); and
  • how the proceeds from the sale will be paid out between the spouses.

The final decision on splitting the money gained from the sale could then be made as part of a final hearing or trial on the issue (or the spouses could agree out of court).

When dealing with the matrimonial home, there are several things to keep in mind. For example:

  • You will likely need to have the home valued.
  • If there is a current mortgage, you will need to get a current statement of the amount still owing on that mortgage.
  • If you sell your home, you will need to know about any prepayment fee that you will need to pay the bank for ending the mortgage early (and include that in your calculations). You will also want to decide how to divide any costs associated with the sale (such as realtor fees, commissions, and lawyers’ fees). Often, if one party keeps the house, the party who keeps the house will pay these costs.
  • Even if one spouse buys out the other spouse, if the current mortgage is in joint names, you will likely want to end the current mortgage, and have the spouse taking the house get a mortgage in his or her own name. For more information about joint tenancy and what to consider in making this decision, see the Before Moving in Together: Legal Considerations Information Page.

Dower rights

The term “dower rights” refers to specific rights to the family home that are given to both spouses, even if only one spouse owns the property. These rights come from Alberta’s Dower Act, and include the following.

  • The family home may not be sold, given away, or rented for a period of more than 3 years without the consent of both spouses, while both spouses are living.
  • If only one spouse owns the family home (in other words, the land title is in the name of only one spouse), and that spouse dies, the surviving spouse has the right to live in the home for the rest of his or her life (and he or she may not sell it unless the deceased spouse left the house to him or her in a Will). If the deceased spouse left the house to the surviving spouse in a Will, it would belong to that surviving spouse.
  • If more than one home was owned by the deceased spouse and were lived in by both of the spouses during the marriage, the surviving spouse would have to choose one house for which to claim the dower right (that is, the right to live in one house for the rest of his or her life).
  • If the property in which you have dower rights was transferred by your spouse to a third party without a court order or your consent, you could sue him or her for damages.
Be Aware

Dower rights do not apply to a property that is co-owned by one of the spouses and another person(s). For example, if Alex and Taylor are married and live in a house owned by Taylor and Taylor’s sister, then Alex would not have any dower rights to this house.

If you separate or divorce, part of the settlement of matrimonial property will likely include the release of your dower rights. Dower rights can also be lost if the Court allows your spouse to sell or give away the family home without your consent. The Court would only make such an order if it was considered it fair and reasonable in the circumstances.

Be Aware

Your division of property paperwork will likely include some clauses dealing with dower rights.

For more information on dower rights, see the following resources.

Audio/Web Rights to your home under the Dower Act
Calgary Legal Guidance
English

Web Matrimonial Property
Centre for Public Legal Education Alberta
English
See “Dower Rights.”

Web Real Estate – General Information FAQs
Centre for Public Legal Education Alberta
English
See “What are dower rights?”

Web A Quick Review of Dower Rights in Alberta
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Dower
The Canadian Encyclopedia
English

Video The Myth Of Legal Separations
Kahane Law Office (via YouTube)
English
This is a private source. Learn more here.

Understanding the principal residence tax exemption

Every year in Canada, residents must pay income tax. Part of doing this is calculating any “capital gains” taxes that you owe. Capital gains are taxes imposed on income earned from the sale of property or investments.

However, there is an exception to the capital gains tax—that of the principal residence. This means that if you owned a property, and that property was your “principal residence” for every year you owned it, when you sell it you do not have to report the sale on your income tax return.

When dividing your property, it is important to understand this exemption, especially if you own more than one home, and/or divide your time between homes.

For more information about the principal residence exemption, see the following resources.

Web Principal residence and other real estate
Government of Canada
English

Web Résidence principale et biens immobiliers
Government of Canada
French

Web Your Principal Residence and Taxes
Centre for Public Legal Education Alberta
English

Web The Principal Residence Exemption
Dean C. Paley, Professional Corporation
English
This is a private source. Learn more here.

Web Principal residence rules
Raymond Chabot Grant Thornton
English
This is a private source. Learn more here.



PDF The principal residence exemption – a powerful planning tool
Sun Life Assurance Company of Canada
English
This is a private source. Learn more here.
Real estate other than the matrimonial home

Some property can be very complex to divide. There can be various reasons for this, including tax issues and the existence of other laws that govern the issue.

When dealing with other real estate, there are the same considerations as those described above about the matrimonial home. There are also some additional considerations, such as taxes.

For example:

  • Years ago, you and your spouse bought a little cottage.
  • You paid $125,000 for it.
  • It is now worth $350,000.
  • The cottage was never used as your primary home and therefore does not qualify for the “principal residence” tax exemption.
  • If you sell or transfer it, you will have to deal with the “capital gains” tax on the $225,000 difference in value. Specifically, a portion of the increase will be taxed (see the resources below for current rates).
  • When dividing property, you will have to keep that potential tax bill in mind.

These issues can be quite complicated. You may want to consider asking an accountant and/or a lawyer for advice. For more information, see the Working with a Lawyer Information Page.

For more information on the capital gains tax, see the following resources.

Web Principal residence and other real estate
Government of Canada
English

Web Résidence principale et biens immobiliers
Government of Canada
French



Web Capital gains explained
MoneySense
English
This is a private source. Learn more here.

PDF Capital Gains Exemption - Planning Techniques
Manulife Financial
English
This is a private source and can be a challenge to read. Learn more here.

Web Tax traps for divorcing clients
Advisor Group
English
This is a private source. Learn more here.

Web Money Talk
Family Law Centre
English
This is a private source. Learn more here.

Web Transfers of capital property
Government of Canada
English

Web Transferts d'immobilisations
Government of Canada
French
Registered Retirement Savings Plans (RRSPs) and Registered Retirement Income Funds (RRIFs)

If you have RRSPs and/or RRIFs, you will need to get copies of the most recent statements so that you know the current value and whether or not the funds are “locked-in.” Being “locked-in” means that they cannot be taken out in cash.

You will also need to keep in mind that RRSPs and RRIFs are funds that came from income, but for which no income tax has yet been paid. Instead, the tax will be owing when you take the money out. This means that when dealing with your RRSPs, you may owe taxes.

If you and/or your spouse have locked-in RRSPs and RRIFs, and if you want to transfer all or a portion of them between each other, you can complete a spousal transfer. For spousal transfers there are no taxes owing. For information about how to complete a spousal transfer, see the Process tab of this Information Page.

On the other hand, if RRSP or RRIF funds need to be taken out and used to buy something (for example: a new home), tax will be owing. It is important for the parties to keep this mind, so they know how much they will actually have and can try to negotiate how best to account for the tax bill in the property division. It is also important to remember that if the funds are locked-in, this kind of arrangement would not be possible.

For example:

  • You have an RRSP that is valued at $60,000.
  • If you want to split the funds equally, you each get $30,000.
  • If you want to split the value equally, and leave the funds in individual RRSPs, you can simply complete a spousal transfer of $30,000 to your former spouse.
  • If, on the other hand, your former spouse will use his or her share to put a down payment on a new home, the money will have to come out. But the amount left in his or her hands will not be $30,000, as there will be taxes owing. Exactly how much tax depends on your income that year.
  • If the down payment needs to be $30,000, you will have to calculate how much more needs to come out of the RRSP to actually have $30,000 left in the hands of your former spouse. For example: to be left with $30,000, the amount taken out might have to be $37,800 (assuming a 26% tax rate). But at $37,800, it can no longer be said that the RRSP was equally split (this may then be something to keep in mind when deciding the final division of your property).

For further information about dividing RRSPs, see the following resources.

Web Registered Retirement Savings Plan (RRSP)
Government of Canada
English

Web Régime enregistré d'épargne-retraite (REER)
Government of Canada
French

Web Registered Retirement Income Fund (RRIF)
Government of Canada
English

Web Fonds enregistré de revenu de retraite (FERR)
Government of Canada
French

Web Divide your finances when you separate or divorce
Government of Canada
English


Web When it’s Splitsville, what happens to your RRSP?
The Globe and Mail
English
This is a private source. Learn more here.

Video Video: Divorce expert offers advice on dividing RRSPs
The Globe and Mail
English
This is a private source. Learn more here.

Web What happens to your retirement savings in a divorce?
The Globe and Mail
English
This is a private source. Learn more here.

Web Death, Divorce and Bankruptcy
Investing For Me Education Incorporated
English
This is a private source. Learn more here.
Life insurance

Term life insurance

“Term life insurance” is insurance that, during a specific period of time (called a “term”), will pay a benefit if the insured person dies. When people are married, they often have term life insurance. This is especially common in some employee benefits packages.

For example:

  • Alex might have term life insurance that says that Alex’s spouse (Terry) will get $300,000 if Alex dies.
  • This insurance comes as part of Alex’s job. The “term” of coverage would end if Alex’s job ended.

When a couple separates, spouses usually want to cancel any life insurance they had. In the above example: why would Alex want to pay for insurance that would give Terry money, now that they are separated? Instead, Alex might want a new insurance policy for someone else (such as a sibling, child, or new spouse).

Term life insurance does not have any value for the purposes of dividing matrimonial property. If the policy is cancelled, there is no payout. Therefore, if Alex cancels the policy, Terry would not be owed any money from it.

However, term life insurance may be important for other issues related to the divorce. For example: if Alex has to pay Terry child support and spousal support, Terry may still want life insurance on Alex, to help make sure that any child and spousal support arrears (and maybe even ongoing payments) would not be lost if Alex suddenly died.

For more information, see the resources below and the “Life insurance as security” sections of the following Information Pages:

PDF Understanding Insurance Basics
Government of Canada
English

PDF Mieux comprendre les assurances
Government of Canada
French

Whole life insurance

Whole life insurance is insurance that pays a benefit on the death of the insured and also accumulates a cash value. As a result, it can have a value for the purposes of matrimonial property division. Contact your insurance provider for more information. You may also wish to consult an accountant, as this can be quite complicated.

Antiques, jewellery, art, and valuable collections

Although these items can be considered “personal” property, they are not usually seen that way if they are valuable. If the parties cannot agree on the value, an appraisal will be needed. If you need help deciding on whether valuable items are “personal” property, you may wish to speak with a lawyer. For more information, see the Working with a Lawyer Information Page.

There are two ways of looking the value: the market value (what you could get for it if you sold it) and the insurance value (what an insurer would give you if the item was stolen). If your case is decided in court, the Court would likely use the market value.

Stock options

As part of their employment, some employees get stock options in their company. Often in such cases, an increase in the “share price” of those stocks (in other words, what they could be sold for), will be available to that employee as some sort of compensation—the exact details depend on the company. This means that the employee’s spouse may be able to claim some of that increase as matrimonial property.

However, this can be very complex. At the time the shares are first given to the employee, they may have little or no value, but if the company does well, they might be valuable in the future. This can affect how you and your spouse wish to handle them. For example: if the shares have value now, the employee’s spouse may wish to have them cashed in now, or at least consider their current cash value. If they are not valuable now, but they may be more valuable in the future, the employee’s spouse may wish for the other spouse to hold the shares in trust for him or her until a future date.

If either of you have stock options, you will need to get the documents that explain what is to be done with them—keep in mind there may be time limits. The employer’s human resources department should be able to help. In addition, you may want to consider talking to an accountant and a lawyer to help with this.

Remember

When cashing in stocks, you need to consider the possibility of capital gains tax (see the “Real estate other than the matrimonial home” section above for more information about capital gains).

For more information about stocks and stock options, and their division in a separation or divorce, see the following resource.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Top 7 Property Issues (article included in "Issues in Matrimonial Property")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library.
Businesses

One of the most difficult and complex issues in separation and divorce is the division of a business.

Under the Alberta Matrimonial Property Act, businesses are property that can be divided: they are part of the “matrimonial property” category. This means that, as a starting point, businesses are to be divided equally between the spouses, unless there is a good reason not to.

Tip

Each province has a slightly different approach about the issue of a business in matrimonial property. For Alberta businesses, be sure you understand the law in Alberta. This is a complex area of law. If your business, or a branch of your business, is in a different province, you may wish to consult a lawyer. See the Working with a Lawyer Information Page for more information.

To decide if there is a good reason for unequal division, a Court would look at the contributions made by the spouses to the business. This includes:

  • setting up or buying the business;
  • having managed or operated the business;
  • protecting the business; and
  • improving the business.

The valuation of businesses is a very complex area, and a lot of information is required. This is even more true if the business is also the main income of one or both spouses. And of course, there are also business tax issues. You may want to consider hiring both a lawyer and an accountant.

Tip

You can also decide to continue your business relationship with your former spouse. For information about things to consider, see the following resource.

Web It may be possible to continue family business following divorce
Kirk Montoute LLP
English
This is a private source. Learn more here.

Given the complexity of this issue, you will likely want to hire a professional business valuator to determine the value of your business. A few things you may want to keep in mind about hiring a business valuator:

  • do your research to make sure the valuator is well-qualified;
  • remember that this will take some time: there is a lot of information required and it cannot be done overnight;
  • to get a valuation you will need to pay a fee. Keep this fee mind when you are doing the final math in terms of the division of property; and
  • if both of you agree on the expert to be hired, it might be more likely that you both accept the result.

There are 3 common approaches to valuing a business:

  1. the “asset-based” approach,
  2. the “earnings/income and cash flow-based” approach, and
  3. the “market-based” approach.

The “asset-based” approach

The “asset-based approach views the business as a set of assets and liabilities. The value of the business is the difference between the value of the assets of the business and the value of the liabilities (debts) of the business. This approach calculates what it would cost to create another business like this one that would produce the same economic benefit as this one. Under this approach, the business as a whole is equal to the sum of its parts.

Within this approach, there are 2 methods of valuation:

  1. The “going-concern” value looks at the business in terms of its ability to generate income in the future. This method takes into account the value of the “intangible” parts of a business, such as goodwill (the value of the reputation of a business), intellectual property (creations of the mind such as artistic work or inventions), and brand recognition (the familiarity of your business or product to the public). This typically gives a higher value than the liquidation value.
  2. The “liquidation” value determines the value of the physical assets of the business if everything was to be sold off. This method does not take into account the value of “intangibles” of a business (see above). This typically gives a lower value than the going-concern value.

For more information about asset-based valuation, see the following resources. These resources are from private sources and can be a challenge to read. Learn more here.

Web Asset-Based Approach
Investopedia
English

Web Going-Concern Value
Investopedia
English

Web Liquidation Value
Investopedia
English

The “earnings/income and cash flow-based” approach

The “earnings/income and cash flow-based” approach looks at the value of the future earning potential of a business and determines the present-day value of that future income. This approach is sometimes called the “discounted cash flow” approach.

The “market-based” approach

The “market-based” approach values your business by comparing it to other similar businesses. This approach may also take into account what a willing seller would sell the business for, and what a willing buyer would pay for the business. This “willing seller, willing buyer” consideration assumes that a willing seller would provide the buyer with all the necessary information to successfully run the business, and would encourage the employees to be as helpful as possible to the new buyer (and not compete with the buyer). This addresses any claims by a spouse who says that the business has a low value because he or she is the only person who knows how to run the business and the only person who the employees are willing to work with.

When using market-based valuation, it is important to make sure you are comparing your business to other similar businesses. For example, just because an oil company is valued 10 times higher this year than last year, does not mean that your medical company will be valued 10 times higher than last year as well.

How to decide which approach to use

Business valuations can be very complicated, and deciding which valuation approach to use can be a challenge. Each approach can result in very different values for the same business. There is no strict rule in determining when to use which valuation method. However, one approach might be more appropriate than another in certain circumstances.

For example:

  • The asset-based approach is sometimes used when a business is no longer operating, or if a business is heavily based on its assets, such as a business that has valuable equipment or vehicles. The asset-based approach is also sometimes used when the other two approaches are too difficult (if not impossible) to use. For instance, in the case of a new business, it may be hard to use the earnings/income-based approach because there is no historical data to use to forecast future earnings. Lastly, the asset-based approach will generally result in the lowest valuation of the three approaches.
  • An income-based approach is sometimes used by investors who want recoup their investment after a certain number of years.
  • A market-based approach cannot be used if there are no comparable businesses or transactions. But if there are comparable businesses or transactions in the market, this approach may be more desirable since it uses public data rather than forecasts and projections.

As there is no one right way to value a business, you will likely want to talk to a business valuator about your options. He or she should be able to help you and your spouse choose the most appropriate valuation approach for your business. You may also wish to consider seeing a lawyer to get legal advice on this issue. For more information, see the Working with a Lawyer Information Page.

Remember

This is a very complex area. Deciding on how to value the business can itself lead to further disputes.

Understanding the different kinds of financial statements

In addition to understanding the different kinds of valuations, it is important to understand that there are different kinds of financial statements, each giving a different amount of information.

The 3 main kinds of financial statements are:

  1. Notice to Reader: For this kind of statement, the accountant writing the report relies only on the information given to him or her by the business. The accountant has no way of checking to see whether or not the information that was given is correct. If the information is not correct, the report will not be a true reflection of the value of the business. This kind of financial statement is the least expensive to get.
  2. Review Engagement: For this kind of statement, the accountant writing the report does enough investigation to be able to say that the information provided by the business does not appear to be inaccurate (this is also called “negative assurance”). Often, this kind of statement is given when an accountant reviews another accountant's report and can’t find any errors in it. This kind of statement provides more detail than the Notice to Reader, but not as much detail as an Audit. This kind of of financial statement is more expensive than the Notice to Reader, but less expensive than an Audit.
  3. Audit: For this kind of statement, the accountant writing the report does a thorough examination of the business’s financials. The accountant does enough investigation and testing to be able to say with more certainty whether or not any of the business’s information is false. This kind of statement provides more detail than the Notice to Reader and the Review Engagement. It is also the most expensive of the three.

More information

For more general information about the valuation of businesses, including how each of the business valuation approaches works, when one approach might be more appropriate than another, and where to find someone to complete valuation, see the following resources.




Web Business Valuation: the Three Approaches
ValuAdder
English
This is a private source. Learn more here.

Web Business Valuation Approaches
ValuAdder
English
This is a private source. Learn more here.

Web Business valuation approaches: strengths and weaknesses
ValuAdder
English
This is a private source. Learn more here.

Web How to evaluate a potential business acquisition
Government of Canada
English
This resource can be a challenge to read. Learn more here.

Web Divorce and family businesses
Kirk Montoute LLP
English


Web Guidance for Divorcing Business Owners
SB Partners
English
This is a private source. Learn more here.

Web Find a CBV
The Canadian Institute of Chartered Business Valuators
English

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Identifying Corporate Aspects of Family Law (article included in "All That Touches Family Law")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

 

Farms

Just as with other businesses, there is more than one way to value farms. In addition, there are some very specific kinds of benefits and tax rules involved in farming operations that do not affect other kinds of businesses.

A few additional things to keep in mind include:

  • farms will often have a lot of farm equipment that needs to be valued;
  • farms also often have a lot of tools that may need to be valued; and
  • some farmers also own the title to the mines and minerals associated with their land (and they may even receive royalties)—these may need to be valued.

The division of farming operations is a very complicated area that requires a great deal of information, and separating spouses generally need the help of financial and legal experts.

For more information about the division of farming operations, see the following resource.

Web Capital Gains: Qualified Farm Property & Divorce
MacPherson Leslie & Tyerman LLP
English
This is a private source. Learn more here.

The following resources are not available online. The links below will give you a preview of the articles, and you can find the full articles at libraries across Alberta. Please note that these articles are sections of a whole book, and they may be a challenge to read. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Property Issues (article included in "42nd Annual Refresher, Family Law")
Legal Education Society of Alberta
English
Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Book Farm and Ranch Divorces (article included in "Advanced Matrimonial Property")
Legal Education Society of Alberta
English
Get the full article from a library: Alberta Law Libraries / The Alberta Library.
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Pensions

For many couples, their pension(s) can be among the largest assets they will accumulate during their life together. Often, it is worth far more than the spouses think. For this reason, it is very important that the spouses understand their rights in relation to any pensions, as well as the value of any pensions.

Pensions are matrimonial property

Under the Matrimonial Property Act, a pension is considered property that is subject to division. Some people are surprised by this. Perhaps this is because they think of a pension not as property, but rather as income, as that is what it will be in the future. Or perhaps it is because they view it as strictly “theirs” because it was related to their jobs.

The law does not see it this way. The right to the pension grew larger during the marriage, and the pension was intended to become part of the marriage. Just as you would bring your income into the marriage and family for things such as rent, mortgage, car payments, furniture, and groceries, so too was the pension intended to be for the family (just as an RRSP would be).

This does not mean that all of your pension(s) is necessarily divisible—like any other piece of matrimonial property, it relates to the period of your marriage. Most work pension division laws describe the part of the pension(s) that may be divided as “the pension benefit earned during the marriage” (also called the “period of joint accrual”).

For example:

  • Shawn started contributing to a pension plan in 1990.
  • In 1995 Shawn married Kendall and after the wedding they moved in together;
  • In 2015 Shawn and Kendall divorced.
  • The pension benefit that is eligible to be divided will only include the benefit earned while they were married: that is, between 1995 and 2015.
  • The benefit Shawn earned between 1990 and 1995 (before they were married) is exempt property.

Even if a pension is divisible, and its value is included in your matrimonial property, that does not necessarily mean that you will actually have to divide the pension.

For example:

  • you may each have a pension that is close in value, and simply decide to each keep your own pension and not divide either; or
  • the spouse with the pension may have enough other assets that would allow him or her to simply give the other spouse the equivalent in cash or assets—this is called “buying out the other person’s interest” in the pension.
Be Aware

The calculations required for pension division can be very complex. For further details about calculations, contact the pension plan administrator.

Kinds of pension plans

For work that took place in Alberta, there are 2 sources of pension plans:

  1. pension plans from your employer (either government or private), and
  2. the Canada Pension Plan (CPP).

Within the range of pension plans from employers, there are various kinds of plans, each having different kinds of benefits upon retirement.

For example:

  • Defined benefit plans: a retirement plan in which the employer, employee, or both make contributions on a regular basis. The employer promises a specified monthly amount (called a “benefit”) upon retirement. That benefit is decided by a formula based on the employee’s earnings (often an average of the highest 5 years’ earnings), length of employment, and age. The benefit does not depend directly on the employee’s and employer’s contributions or on the investment earnings.
  • Defined contribution plans: a retirement plan in which the employer, employee, or both make contributions on a regular basis, and the benefit is based on the amount of contributions plus any investment earnings on the contributions.
  • Hybrid plans: these are a newer development. Employees might have a portion as a defined benefit plan and a portion as a defined contribution plan.

Some employer pension plans also have “supplementary” benefits. These are benefits that employees can voluntarily pay into, in addition to the regular (mandatory) plan offered by the employer.

For the purposes of dividing the pension, it is important to know what kind of pension it is that you are trying to split.

Be Aware

If you worked in a different province during the marriage, the laws of that province will affect the division of the pension. For more information, see the Family Breakdown and Out-of-Province Issues Information Page.

Dividing employer pension plans

All pension plans (and the specific laws that govern them) say how the pension benefit is to be divided if the marriage ends. However, the spouses must apply and meet the necessary requirements.

Pension valuation

As a first step, the pension will have to be valuated. There are many factors that may be involved in doing this. You will want to get the details about the kind of pension and recent statements from the pension plan administrator. For defined contribution plans, recent statements may be enough to determine the value, but you may still want to ask the administrator for a valuation. For defined benefit plan, you will need to ask the administrator for a valuation.

For more information about valuing pension plans, see the following resources.

Web FAQ - Pensions
Canadian Institute of Actuaries
English

Web Divorce and Retirement
Moe Hannah LLP
English
This is a private source. Learn more here.

Web FAQ Marriage Breakdown: Actuarial Valuation
GML Actuaries
English
This resource is from a private source outside Alberta. Learn more here.

Web FAQ Divorce / Séparation : l'évaluation actuarielle
GML Actuaries
French
This resource is from a private source outside Alberta. Learn more here.

The following resources are not available online. The links below will give you a preview of the articles, and you can find the full articles at libraries across Alberta. Please note that these articles are a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Valuation of Pensions upon Marriage Breakdown (article included in "46th Annual Refresher, Family Law")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Book Valuation of Pensions (article included in "Pensions in Family Law")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Division options

Your division options will depend on the kind of pension, the age of the parties, and whether or not the pension is already being paid to the pension holder (this is also referred to as the pension being “in pay”). When you ask for a valuation, the administrator will also be able to give you information about your division options.

Understanding your pension division options can be challenging. This is not an easy topic. If you need help, you can ask the pension plan administrator, or talk to a family law lawyer. For more information, see the Working with a Lawyer Information Page.

Be Aware

Pensions can only be divided if you have a written separation agreement that states the terms of the division, or a court order setting out the division, depending on what the pension plan requires. But some pension plans require a court order and do not accept an agreement: be sure to ask the pension plan administrator what they require. Once you have the final agreement or court order, a formal request will have to be made to the pension plan administrator to make the division happen.

More information about dividing employer pension plans

For more general information about dividing employer pension plans upon marriage breakdown, see the following resources.

General information:


PDF Pension basics for family law practitioners
Canadian Bar Association
English
This resource can be a challenge to read. Learn more here.

Web Splitting up and then splitting stuff
Financial Post
English

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Pension Benefits in a Family Law Context: Developments and Practical Considerations (article included in "Issues in Matrimonial Property")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library.

Information about Alberta pension plans:

Web Pension Division Upon Marital Breakdown
Alberta Pensions Services Corporation
English
This resource is for Alberta public service pension plans (other than Teachers and Universities Academic Plan).

Web Pensions in Alberta - Overview
Government of Alberta
English
You will also want to contact the company itself.

Web Your Pension Connection
Alberta Teachers' Retirement Fund Board
English

Web Key Information
Universities Academic Pension Plan
English

The following resources are not available online. The links below will give you a preview of the articles, and you can find the full articles at libraries across Alberta. Please note that these articles are sections in whole books. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Public Sector Pension Plans (article included in "Pensions")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library

Book Pensions: Death and Marriage Breakdown (article included in "Pensions")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library

Information about federal pension plans:

Web Pension and benefits
Government of Canada
English

Web Pension et avantages sociaux
Government of Canada
French

Web Pension Members’ Guide 2016
Government of Canada
English
This resource can be a challenge to read. Learn more here.

Web Guide du participant d’un régime de retraite fédéral
Government of Canada
French
This resource can be a challenge to read. Learn more here.

The following resource is not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Surviving Your Divorce: A Guide to Canadian Family Law
Michael G. Cochrane
English
Get the full book from a library: Alberta Law Libraries The Alberta Library. See Chapter 5.

Canada Pension Plan (CPP)

Every employed person makes contributions to the Canada Pension Plan (CPP). The exact amount is based on your salary, and is taken from your paycheque automatically. The more you contribute, the more your pension credits increase. When you apply for a benefit under the CPP, your pension credits are used to determine:

  • whether you are eligible for what you are asking, and
  • if you are eligible, what the amount of the benefit will be.

The CPP credits earned by married spouses during their marriage (as well as any time after they met the federal definition of “common-law” partners) can be split between the spouses if they separate. This provides some financial protection to a spouse who did not work outside of the home and/or could not reasonably have contributed to their own plan. However, credit splitting does not happen automatically—you must apply. See the following resources for more information.



Web Divorce and Retirement
Moe Hannah LLP
English
This is a private source. Learn more here.

Web Canada Pension Plan Credit Splitting Guide for the Legal Profession
Government of Canada
English
This resource can be a challenge to read. Learn more here.

Web Guide du partage des crédits pour les membres de la profession juridique
Government of Canada
French
This resource can be a challenge to read. Learn more here.

The following resource is not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

Book Surviving Your Divorce: A Guide to Canadian Family Law
Michael G. Cochrane
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library. See Chapter 5.
Severance pay

Many of us think of severance pay not as “property,” but more like “income” for a coming period of unemployment. If that were the case, someone might think that their former spouse would have no claim to the severance package if the layoff happened after the separation. However, severance pay—just like a pension—is considered a “right” or “entitlement” that builds as you work for a particular employer.

For example: during your marriage, you worked for an employer for 20 years. Shortly after you separated, you were laid off. Given your 20 years of service, your severance package is rather large. The entitlement to that severance was built up over the 20 years (which was during the marriage). Therefore, it is matrimonial property.

Be Aware

If all of the severance is considered matrimonial property, then you cannot also argue that it should all be considered income for support purposes as well (that is known as “double dipping”).

For more information, see the following resources.

Web Is Post-Separation Severance Pay Already “Earned” at the Date of Marriage?
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

Web Dembeck v. Wright – Treatment of Severance Payments under Family Law
Feldstein Family Law Group
English
This resource is from a private source outside of Alberta, and can be a challenge to read. Learn more here.

PDF The Matrimonial Property Act: A Case Law Review
Alberta Law Reform Institute
English
This resource can be a challenge to read. Learn more here. See p. 40.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Top 7 Property Issues (article included in "Issues in Matrimonial Property")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta Library. Start on p. 23.
Pets

For many people, pets are members of their family. In fact, often people use the term “custody” when discussing who will take care of the pets after a relationship breaks down. Judges have even been known to grant orders that two former spouses share the care of their pets.

The law, however, does not view pets a family members. Legally speaking, pets are property. That is why courts do not use the term “custody”—that term is for children. That said, pets are not treated in quite the same way as other property—after all, not many separating couples share the care of the TV or the couch.

In many ways, it does not make sense to treat pets as property. For example, they cannot be very easily “divided.” Also, the spouses do not want to sell them in order to divide the proceeds. However, pets are still technically property. As a result, courts sometimes try to value the pets and assign that value to one spouse or the other.

In deciding who will get the pets, courts have been known to consider things such as:

  • which spouse bought the pet, and did the pet belong to one of the spouses prior to the marriage;
  • if the pet a gift from one spouse to the other;
  • if there was any agreement or understanding between the spouses about who would take care of the pet (whether it was written down or not);
  • which spouse has been more of a caregiver for the pet during the marriage;
  • who has had the care of the pet in the time since the separation;
  • who is a more capable caregiver for the pet; and
  • if there are children involved, what pet arrangements would be in the best interests of the children.

Given the unique nature of pets, it can be better for everyone if the issues can be resolved by agreement. Without a court involved, the spouses can get much more creative with solutions, as they are not bound by the rules that say that pets are property.

Family Violence

Pets are given higher status than property when getting a protective order in situations of domestic violence. For example, unlike most other kinds of property, the care and control of pets can be included in the terms of an Emergency Protection Order. To do so, you need to show that protecting the pet will help protect the victims of family violence. For example, victims may be more likely to leave an abuser if they know that the pet is safe and away from the abuser. For more information about this, see the Protective Orders Information Page.

For more information about how pets are treated in property division, see the following resources.


Web Dealing with Pets after Separation, Part 2: Going to Court
Centre for Public Legal Education Alberta
English


Web "Best interests of the family pet" - not yet!
Soby Boyden Lenz LLP
English
This is a private source. Learn more here.

Web Who gets to keep Fluffy?
Russell Alexander, Collaborative Family Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

Web Who gets the dog?
Nelligan O'Brien Payne LLP
English
This resource is from a private source outside Alberta. Learn more here.

Video Family Matters - Pets and Divorce
AdviceScene (via YouTube)
English
This is a private source. Learn more here.

Web Our family pets: Custody proceedings, or property?
Pantalone Family Law
English
This resource is from a private source outside Alberta. Learn more here.

Web Provincial Court releases decision on pet custody battles
JP Boyd on Family Law
English
This resource is from outside Alberta. Learn more here.

Web Pet Custody Issues
WomansDivorce.com
English
This resource is from a private source outside Alberta. Learn more here.
Property that is outside of Alberta

The Matrimonial Property Act (MPA) allows a court to take into account property outside of the province. While the Court cannot make an order about property outside of Alberta, the Court can take the value of that property into consideration. Often, this means that the Court will divide the property in Alberta in a way that reflects the value of the property outside of the province.

For more information about courts taking the value of this property into consideration, see the following resources.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
See p. 14.

PDF FAQs - Dividing Property & Sharing Debt
Bodnaruk Law
English
This is a private source. Learn more here. See p. 2.

Web Matrimonial Property and Ex-Juris Assets (Or “Debtor’s Prison Making a Comeback”)
Huckvale LLP
English
This is a private source and can be a challenge to read. Learn more here.

Web Disclosure of Foreign Assets in Matrimonial Property Actions
ABlawg
English
This resource can be a challenge to read. Learn more here.

PDF Disclosure Matters: Foreign Owned Assets Must be Fully Disclosed
McLeod Law LLP
English
This is a private source. Learn more here.

If spouses are making their own separation agreement, they should be sure to include the value of out-of-province assets. This may require a formal valuation.

If spouses are asking the Court to make a decision about out-of-province assets, a formal valuation will be required. To do so, you may need to use a form called a “Notice to Admit” (Form 33) under Rule 6.37 of the Alberta Rules of Court. This is a complicated procedure that has several steps. You may wish to consult a lawyer. See the Working with a Lawyer Information Page for more information.

Be Aware

Property that is located outside of Alberta will be subject to the laws of that jurisdiction. You will need to learn about those laws as well (and they may be different from Alberta law). For more information, see the Family Breakdown and Out-of-Province Issues Information Page.

Information about other specific kinds of property

Below are resources that discuss other kinds of property that may be overlooked when dividing property.

Web Divorcing Women: Don't Forget These Marital Assets
Forbes Media
English
This resource is from a private source outside Alberta. Learn more here.

Web Transferring loyalty points: What you need to know
MoneySense
English
This is a private source. Learn more here.

Web Divorce & Personal Property: Don't Overlook Valuable Marital Assets
Avvo Inc
English
This resource is from a private source outside Alberta. Learn more here.

The following resource has information about several cases dealing with different kinds of matrimonial property. This resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Top Ten (Actually Twelve!) Recent Matrimonial Property Cases to Know About (article included in "Matrimonial Property Division")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library
Religious & 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. The following resource points out key differences between Canadian family law (including property issues) and traditional Muslim approaches.

PDF Family Property & Spousal Support: Muslim & Canadian Family Laws
Canadian Council of Muslim Women
English
This resource is from outside Alberta. Learn more here.
Aboriginal matters and on-reserve considerations

The Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) was passed several years ago. Under this law, a spouse who is living on-reserve will be able to apply for exclusive possession of the on-reserve family home. There are 2 different kinds of orders that can give exclusive possession:

  • In cases where there is family violence and there is a need for immediate protection, a spouse can apply for an Emergency Protection Order (FHRMIRA EPO).
  • For less urgent situations, a spouse can apply for an Exclusive Occupation Order (EOO).

However, before that can happen, judges to hear the applications must be appointed. This has not yet happened.

As a result, in Alberta it is currently not possible to apply for Emergency Protection Orders or Exclusive Occupation Orders under this law.

Blended family considerations

Under Alberta law, property division for married spouses is no different for blended families than it is for any other families. Your property division issues will be guided by the same laws and approaches described above.

LGBTQ considerations

Under Alberta law, property division for married spouses is no different for LGBTQ families than it is for anyone else. Your property division issues will be guided by the same laws and approaches described above.

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, if you and/or your spouse got the property while still using the name and/or gender assigned at birth. Now you are involved in a court application/action using a different name and/or gender than that 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 qualify to make your request.

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

Polyamorous relationships

Under the Matrimonial Property 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, when dividing matrimonial property, the rights and obligations described above would only apply between the spouses who were married to one another. Any additional person romantically involved with the two married spouses would not be part of any action under the Matrimonial Property Act.

However, an unmarried partner can use the law of property division for non-married couples. For information about that, see the Property Division for Unmarried Couples 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 spouses are involved in criminal proceedings

If one or both of the spouses 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.

Going into bankruptcy

The process of separating and divorcing can be expensive. Even in the best of situations, such as where the spouses agree on everything, there will be 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 spouse 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 spouse.

Bankruptcy and support

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

Property

When you declare bankruptcy, the ownership of your property is transferred to a “trustee in bankruptcy.” The trustee’s job is to list all your debts, then sell as much as necessary to pay off your creditors. This can include almost all property registered in your name (or property you have an interest in), but a few specific kinds of assets are excluded (such as pensions). In addition, if an asset or debt is matrimonial property, the trustee can only take your share (whether it is in your “name” or not). Property that belongs to your former spouse will not be used to pay your share of the debts. The only time your former spouse would be responsible for your share of the debts is if he or she co-signed or guaranteed that debt.

However, depending on the exact circumstances and timing, a declaration of bankruptcy can still have an effect on the other spouse. For example:

  • A couple separates and comes to an agreement.
  • Spouse A will keep the home and to do so will pay a fixed amount of money to Spouse B (Spouse A is “buying out” Spouse B).
  • It is quite a bit of money, so the final agreement states that the money will be paid over time (these are called “equalization payments”).
  • Before Spouse A pays all of the money to Spouse B, Spouse A declares bankruptcy.
  • Because of the bankruptcy, Spouse A no longer has the money to pay Spouse B.
  • Spouse B is now short money. Although Spouse B may be able to take action to attempt to fix this situation, in the meantime, the money is short.

For that reason, it is a good idea to make decisions very carefully and seek advice if you suspect bankruptcy could be an issue. This can be very complicated, and a lawyer can give you advice to help you protect yourself. For more information, see the Working with a Lawyer Information Page.

What this means in Court and in your future

Courts have seen many cases where people try to use a declaration of bankruptcy to avoid support and property obligations, and they have made it clear that such people should not receive favourable treatment. In addition, courts can “annul” a declaration of bankruptcy if it is found that the bankruptcy declaration should not have been made. The annulment of the bankruptcy is a court order that makes it as if the declaration of bankruptcy never happened. Attempts to avoid support and matrimonial property claims can provide reasons for such an annulment.

Also, in order for a bankrupt person to get out of bankruptcy (and get their own life back to normal), they must be “discharged”—see the resources below for information about this. Although discharge can be automatic in certain circumstances, it is only automatic if it is not opposed. A spouse who has been financially harmed by his or her former spouse’s declaration of bankruptcy can oppose the discharge, and ask that there be no discharge until that financial harm has been made right.

For more information about bankruptcy, see the following resources.

Web Bankruptcy FAQs
Centre for Public Legal Education Alberta
English


Web Separation & Joint Debt
Divorce Canada
English
This is a private source. Learn more here.


Web Separation, Divorce and Bankruptcy in Canada. What you should know.
Bankruptcy Canada
English
This is a private source. Learn more here.

Web Understanding Divorce and Bankruptcy
Advisor Group
English
This is a private source. Learn more here.

Web The Double Whammy: Bankruptcy after Divorce or a Marital Breakdown
Fong and Partners Inc.
English
This is a private source. Learn more here.

Web How Does Filing Bankruptcy Affect my Divorce or Separation?
Bankruptcy Canada
English
This is a private source. Learn more here.

Web Death, Divorce and Bankruptcy
Investing For Me Education Incorporated
English
This is a private source. Learn more here.

Web Bankruptcy In Divorce: Cover Your Assets
Stringam Denecky LLP
English
This is a private source. Learn more here.

Web Protecting Property & Debt in Family Law Matters
Clicklaw
English
This resource is from outside Alberta. Learn more here. See “Debts, bankruptcies and third-party claims.”

Web Schreyer v. Schreyer: Canada's Divorce-Bankruptcy Loophole
Wise Law Office
English
This is a private source. Learn more here.

Web Bankruptcy and equalization payments
Nelligan O'Brien Payne LLP
English
This is a private source. Learn more here.

French resources:


Web La faillite
Association des juristes d'expression française de la Nouvelle-Écosse
French

id='89748'[/resource

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Bankruptcy and Insolvency Interacting with Family Law
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
Death of a spouse

Although it does not happen very often, sometimes one of the spouses dies after a Matrimonial Property Act (MPA) action has been started (but before it has been resolved), or before an MPA action has even been started.

If your spouse has died and you were thinking or talking about separation and divorce, but had not yet started an MPA action, you may now start the action, as long as you meet all of the MPA requirements, and could have started the action just before your spouse’s death.

Be Aware

If your spouse’s estate gets a grant of probate, you have only 6 months from the date of probate to start the MPA action. For more information about what probate is, see the Dealing with a Death in the Family Information Page.

If you had already started an MPA action before your spouse’s death, the action can continue, only now it will be against your spouse’s estate.

For more information, see the following resources.

PDF Matrimonial Property - General Information
Government of Alberta
English
See “How and when do I get started?”

PDF Division of Matrimonial Property on Death
Alberta Law Reform Institute
English
This resource can be a challenge to read. Learn more here. See Chapter 3.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
See p. 7.

The following resources are not available online. The links below will give you a preview of each article, and you can find the full articles at libraries across Alberta. Please note that these articles are sections in whole books. The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Impact on Death (article included in "Domestic Contracts")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.
​​​​
Out of court resolution options

You do not have to go to court to solve your property division 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.

However, before coming to any resolution, it is important to understand your rights and what you might be entitled to under the Matrimonial Property Act (MPA)—see the “Categories of property” section above. Both spouses must know of the possible claims to property that they may have under the MPA, and either make an agreement that follows the MPA, or knowingly want to give up these claims and replace them with the agreement. In other words, the parties are “contracting out” of the MPA: the MPA will not apply to their property, and the spouses can divide their property however they like.

In addition, for a matrimonial property agreement to be valid (whether you make it on your own or with the help of a third party), there are some very specific requirements that must be met—see the Process tab of this Information Page for more detailed information.

It is also important to keep in mind that the division of matrimonial property is separate from spousal support and child support. This means that you have can have rights for all three issues, and you do not have to give up your right to one for “more” of another. And in the case of child support, you cannot just “contract out” because child support is the right of the child.

Tip

Reaching an out-of-court resolution about the division of your property can take a while. Keep in mind that there are time limits for filing an MPA application (see the “Time limits to apply under the Matrimonial Property Act” section above). If you are nearing that time limit and you have not yet filed your Claim for divorce, annulment, or irreconcilability, you may wish to consider filing (even if you are still negotiating). For more information about filing this paperwork, see the Process tab of this Information Page.

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.

Remember

For agreements that divide matrimonial property, the parties must get independent legal advice and must sign the agreement with the lawyers who gave them that independent legal advice. If you do not go to a lawyer, your agreement about the property will not be binding and the other party could ask the Court to ignore the agreement when dividing up the property.

Keep in mind that agreements cannot be enforced the same way that court orders can be. In addition, for certain kinds of property, a third party (such as a bank or a pension administrator) might require an Order. If you have an agreement about the division of matrimonial property, you will want to read the “Consent orders” section on the Process tab of this Information Page. Also, the Court will not enforce an agreement that it considers “unconscionable.” For detailed information about what that means, as well as additional information about making an agreement about the division of matrimonial property, see the Coming to an Agreement on Your Own Information Page.

For more general information about making an agreement about property division, see the following resources.

Web Matrimonial Property
Student Legal Services of Edmonton
English
See “Marriage and Separation Agreements.”

PDF Separation Agreements: Your Right to Fairness
Legal Services Society
Chinese, English, French, Punjabi, Spanish, Tagalog
This resource is from outside Alberta. Learn more here.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
Start on p. 22.

Video The Need for Cooperation
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.

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 Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
See p. 22.

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 here. Choose 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 three 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.
  3. There is property located outside Alberta that the partners want to divide.

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.

In addition to being married (or formerly married), if you wish to apply to a court for a division of matrimonial property, the person asking the court for the division must show the Court that at least one of the following conditions applies:

  • both spouses (or former spouses) currently live in Alberta;
  • if both spouses (or former spouses) do not currently live in Alberta, their last joint residence was in Alberta;
  • if the spouses (or former spouses) did not live together since the date of their marriage, both of them lived in Alberta at the time of the marriage; or
  • a Statement of Claim for Divorce has been filed in Alberta (for more information about this, see the Ending a Married Relationship Information Page.

If a court in any other province, territory, or country has already made an order in your case, or if a move has occurred or is planned, see the Family Breakdown and Out-of-Province Issues Information Page.

Resolving matrimonial property in court

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 the Working with a Lawyer Information Page for more information about these options.

Going to trial

Not all cases go to trial, but some do. Going to trial is very different than going to other kinds of court hearings. There are different rules and procedures. It is also much more time-consuming and much more expensive. For information about going to trial, see the Understanding the Court Process Information Page.

Appeals

It is possible to appeal a court decision granted in the Court of Queen’s Bench (this is true of both chambers and trial orders). You would have to appeal to the next highest court, the Alberta Court of Appeal.

However, you cannot appeal a decision simply because you are not happy with it. You can only appeal if you believe the judge has made an error of law or a substantial error on the facts. In addition, be aware that an appeal can only be made within 30 days of the order.

For more information, see the following resource and the Understanding the Court Process Information Page.

Web Make an appeal at the Court of Appeal
Government of Alberta
English

Process

Learn more about using Alberta’s Matrimonial Property Act to divide your property if you were married. See the sections below for information about:

  • Protecting the property after you separate
  • Valuing the property
  • Providing financial disclosure
  • Hiring a lawyer or representing yourself
  • Applying for exclusive possession of your home, or responding to an application for exclusive possession of your home
  • Options for staying out of court (including consent orders)
  • The paperwork you need to file with the Court of Queen’s Bench
  • The basics about the court process and what to expect
Be Aware

The Matrimonial Property Act may not apply to you. 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: February 2017
Who is this Information Page for?

This Information Page contains information about the process of property division for spouses who were in a married relationship.

Tip

If you are just starting out with this topic, it’s a good idea to begin on the Law tab of this Information Page. There you will find basic information about what the law says, what the words mean, and other issues that will help you understand better what to ask for and how to get it. Once you have the basics down, you will be in a better position to learn about the process you need to follow to resolve your legal issues.

This Information Page does not apply to couples who were not married. If you were in a non-married relationship and wish to divide your property, please see the Property Division for Unmarried Couples Information Page. To be clear, if you were not married, Alberta’s Matrimonial Property Act does not apply to you: it only applies to people who were married.

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

In general, this Information Page is for families who live in Alberta, and who have been “ordinarily resident” in Alberta for at least one year. If a court in any other province, territory, or country has already made an order in your case, or if a move has occurred or is planned, see the Family Breakdown and Out-of-Province Issues Information Page.

If you live on-reserve, you will need to review the information on the Family Breakdown if You Live on Reserve Information Page.

You are currently on the Process tab of this Information Page, which has information on the process you need to follow to ask for what you want. For information on the law that governs your situation, click on the Law tab above. There is also important information in the Common Questions and Myths tabs above.

The topics on this page are listed in the order they are generally considered. The answers of one can affect what happens next and what choices you may need to make.

Alberta’s two-court system

In some provinces, any “family law” matter goes to a specialized family court: everyone is in the same court. This is not the case in Alberta. In Alberta, for many separation and divorce-related matters you can—and sometimes you must—choose one of two courts (and your choice can depend on what law you use and exactly what you are asking for).

Tip

You do not have to go to court to solve your separation issues. There are many ways to resolve legal issues out of court, which are often faster and less expensive than going to court. For more information, see the “Out of court resolution options” section below.

The division of matrimonial property can only be dealt with in the Court of Queen’s Bench (QB). Similarly, the “divorce” itself can only be given by QB (and if you want the “divorce” part, you must involve the Court). This will likely mean that you will want to deal with all of your separation and divorce-related matters at the same time, in QB.

However, 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. Although these laws are similar in many ways, there are some important differences to consider when choosing. Also, the law married people choose to use can affect which court they must go to: Divorce Act matters must be heard in the Court of Queen’s Bench, but Family Law Act matters may be heard in either the Court of Queen’s Bench or the Provincial Court of Alberta. Therefore, the choice of which law to use is extremely important.

For more information on how to get the “divorce” itself, as well as detailed information on things to consider when choosing between the Divorce Act and the Family Law Act to address support and parenting issues, see the Ending a Married Relationship Information Page.

Making a list of your property

The first step in figuring out how best to divide matrimonial property is to make sure you know what all of the property is. To do this, you may wish to make a detailed list.

  • Include all of the property that you and your spouse own (including property that is outside of Alberta).
  • Indicate which property you owned before the marriage, got during the marriage, and even which property you got after separation—if your case goes to trial, the Court would look at all property owned at the date of trial.
  • Include details such as when you got the property, who paid for it, whose name it was/is in, and what it is worth now.
  • Include similar information for all debts: when they were acquired, what they were for, whose name they were/are in, and what amount is left owing on the debt.
  • Start a list of your spouse’s potentially exempt property—see the “Categories of property” section on the Law tab of this Information Page for more information.

For more information about making such a list, including examples, see the following resources.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English

PDF Matrimonial Property - General Information
Government of Alberta
English

PDF Matrimonial Property Regulation
Government of Alberta
English
This resource lists categories of property for you consider, and you may need to follow this regulation if you go to court.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Top 7 Property Issues (article included in "Issues in Matrimonial Property")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full text from a library: Alberta Law Libraries / The Alberta LibraryStart on p. 11.
Protecting the property

There are steps you can take in order to protect your property: some you can do yourself without the involvement of the Court, others do involve the Court.

Out-of-court steps you can take

The following are some out-of-court steps you can take to protect your property.

Talk to your bank about any joint accounts that you have with your partner. There could be chequing accounts, savings accounts, and lines of credit. For example, you could ask:

  • to reduce limits on overdrafts and credit lines to what you currently owe, or
  • for the account to be changed to require two signatures to withdraw money.

For more information on the possible dangers of joint accounts, see the “Understanding joint ownership and debt” section of the Before Moving in Together: Legal Considerations Information Page.

Other banking actions you can take include:

  • Cancel any secondary credit cards—this is when a credit card is in your name, but your partner has a card that he or she can also use.
  • Change all of your PIN codes.
  • If you don’t already have one, open a bank account in your name only.
  • If you need credit, ask the bank to open a line of credit in your name only.

If your spouse is the beneficiary, change the beneficiary of your investments, pensions, RRSPs, insurance policies, and Will. For more information about how to do that, see the Planning for Death Information Page.

If you have a Power of Attorney and your partner is the person you named as your Attorney, change your Power of Attorney. For more information about how to do that, see the Planning for Illness (including Powers of Attorney and Personal Directives) Information Page.

Injunctions

An “injunction” is a court order that says that a person is not allowed to do something. If the person does not obey the court order (and does the thing that is forbidden), then he or she may be found in “contempt of court,” which can result in a fine and/or jail time.

If you have “reasonable and probable grounds” to think that your former spouse, in order to avoid your MPA claim, plans to give away some property, or transfer property to a person who is not a real buyer paying a fair price, you can make a court application to stop it. This is allowed under section 34 of the Matrimonial Property Act and Rules 6.24 - 6.27 of the Alberta Rules of Court.


Web Alberta Rules of Court
Government of Alberta
English

If necessary, the application can be made ex parte (this means without notice to the other party). For more information about when it is or is not appropriate to make an ex parte application, see the Understanding the Court System Information Page.

If the transfer has already taken place, you can go to court to have the loss addressed (section 10 of the MPA). For example: the Court can order your former spouse to transfer the property back to you or to reimburse you for the loss, or the Court can take the loss into consideration when dividing the rest of the matrimonial property.

To make such an application, you must have already started your MPA action (see below for more information about that). You can then make a general application using the package of forms below. This package includes an Affidavit and an Affidavit of Service.

For more information about completing the Affidavit, “serving” your spouse with the paperwork, and the Affidavit of Service, see the various sections about court hearings below.

There may be other kinds of injunctions that can be used in very specific circumstances, but they are much more complex. A lawyer will be able to help. For more information, see the Working with a Lawyer Information Page.

Business owners: Appointing a “receiver”

This applies when partners operate a business. If one partner believes that the other partner is mismanaging the business, that partner can make an application to appoint a “receiver” for the business. A receiver is an independent and impartial third party appointed by a court to manage and preserve a business that is the subject of a lawsuit. The receiver acts until that lawsuit is resolved.

The appointment of a receiver is permitted under section 13(2) of the Judicature Act. If the business is incorporated, and both spouses are shareholders in the business, a receiver can be appointed under the Business Corporations Act. If you are appointing a receiver as part of your Matrimonial Property Act action, it is possible under section 9(3)(j).

Getting a receiver appointed is not an easy task, and will require much financial information. You may wish to consider consulting an accountant and a lawyer. For more information, see the Working with a Lawyer Information Page.

Getting a Certificate of Lis Pendens

A Certificate of Lis Pendens is a written notice that a lawsuit has been filed concerning a piece of real estate. The Lis Pendens gets registered on the property. Then, any debts from the lawsuit mentioned in the Certificate ranks above any debt (for example: a new mortgage) that is registered on that property afterwards. This means that the value of the real estate would have to pay for any judgment from the lawsuit before paying for any debts registered later.

For example:

  • Riley and Jesse were married.
  • The house is in Riley’s name only.
  • Riley and Jesse are now divorcing and are involved in a Matrimonial Property Act action to divide their property.
  • Jesse is asking for a share of the value of the house, but is worried that Riley, who needs money, will try to get a new mortgage on the house before the action is settled. 
  • Jesse can file a Certificate of Lis Pendens against the house.
  • This lets banks know that Riley is currently involved in a lawsuit and that the “value” of the house might not all belong to Riley after all.

If you have already started a Matrimonial Property Act (MPA) action, you can file a Certificate of Lis Pendens against a piece of property that is under dispute and in which the other spouse has an interest. Certificates must be filed with the Registrar of Land Titles.

The Certificate of Lis Pendens is in the Matrimonial Property Regulation:

PDF Matrimonial Property Regulation
Government of Alberta
English

There are two Land Titles Offices in Alberta: one in Calgary, and one in Edmonton. You can submit your documents to either office for registration, regardless where the property is located. In some cases a registry office (where you renew your driver’s licence) will accept land registration documents, but they can only be processed in one of the Land Titles Offices. For more information, see the following resources.

Web Land Titles Office Locations
Government of Alberta
English

Web Housing, property & utilities
Government of Alberta
English
Valuing the property

Whether you resolve your matrimonial property issues by agreement or through court, you will need to value some or all of your property. This means that you will need to choose a valuation date. If you go to court, the court will most likely use the date of the hearing or trial (which is likely an unknown date in the future). But if you are trying to reach a settlement out of court, you will want to pick a date. Many couples choose the date of separation, but you can choose a date that works for both of you. You could even try a few different dates, to see what the differences would be, and to be better prepared for negotiations.

Even if the spouses agree on a valuation date, it is not always clear how to figure out the value of an asset or debt.

For many assets and debts, the value can easily be found by looking at the most recent statement. Examples include: bank accounts, Guaranteed Investment Certificates (GICs), bonds, RRSPs, mortgages, credit cards, loans, or receipts.

For other assets, such as those that can increase or decrease in value, the value is the amount for which you could sell that asset. Examples include: your house, furniture, or your car. This is not always easy to figure out. In order to divide property as equally (or fairly) as possible, it is important to know the value of the property being divided. As a result, you may need to do research. This can include finding similar items being sold (for example: on Kijiji, Craigslist, or AutoTrader), or hiring an expert.

For example:

  • Since the price of houses is always changing, you may wish to hire a realtor to complete a valuation report on your home. Or you could agree to use the value the home was given in the previous year’s property tax assessment (although, in a quickly changing market, that may not be a good reflection of what you would get if you tried to sell the house).
  • Doing research or getting an opinion is also important for assets such as cars, because the “value” of a fairly new car is very different from the value of a 20-year-old car that has been driven by several members of the family. Although “division” could mean that each spouse gets one of the cars, that division would not likely be “fair.”

Valuing property becomes even more complicated when the property to be valued is a business or a farm. In such cases, it is very common to hire an expert. The expert will write a report that is then included in the written evidence. If you go to trial, the expert may also have to give evidence at trial.

If you do hire an expert to provide a value for a piece of property, consider making sure that you both agree on the expert to be hired, so that you both accept the result. Also remember that if you get an appraisal from an expert, you will need to pay a fee. Keep this fee mind when you are doing the final math in terms of the division of property.

Be Aware

For large and/or complex assets, if you end up going to court, a statement from an expert will usually be required.

To find a realtor in your area, see the following resource.

Web Find a REALTOR®
The Canadian Real Estate Association
English

For more information about how to find a certified appraiser to value your property, you can contact the Alberta branch of the Appraisal Institute of Canada.

Web Appraisal Institute of Canada - Alberta
Appraisal Institute of Canada
English
Spousal transfers of locked-in Registered Retirement Savings Plans (RRSPs) and Registered Retirement Income Funds (RRIFs)

If you and/or your spouse have locked-in RRSPs and RRIFs, and if you want to transfer all or a portion of them between each other, you must complete a spousal transfer. To do this, you will need to use the Canada Revenue Agency’s Form T2220E.


Disclosure

Sometimes each spouse has only some of the information about assets and debts. To help figure out how best to divide the family property, you will both need to share the information you have with each other.

There are a number of ways to get matrimonial property information from your former spouse:

  • You can simply ask for it. If you are both cooperative with one another, there is no need to involve the Court in the disclosure process.
  • You can use the official court form: the “Notice to Disclose” (see the various sections about court applications below). This can be helpful as it has a clear list of all of the information you and your spouse will need to include. In addition, it can be effective if your former spouse has been refusing to provide financial disclosure. You do not have to be taking the matter to court to use the Notice to Disclose paperwork. However, if you are taking the matter to court, make sure you follow the procedures listed below.
  • If you go to court, and you find that the information your spouse has given you is not enough, you may be able to verbally question him or her, and you may be able to send written questions. These options, which are related to the court process, are called “questioning on affidavit” and sending “written interrogatories.” There is more information about both of these options below.
Out of court resolution options

You do not have to go to court to solve your family law 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.

When coming to an agreement, it is also important that you understand the law around the division of matrimonial property. For detailed information, see the Law tab of this Information Page.

In particular, it is important to understand that creating an agreement about matrimonial property will allow the parties to contract out of the Matrimonial Property Act (MPA). That means that the MPA will not apply to their property. In addition, for your agreement to be valid, there are some very specific requirements that must be met:

  • the agreement must be in writing;
  • the agreement must have been entered into freely (in other words, you cannot have been forced by your spouse or some other person);
  • before signing the agreement, each spouse must have received independent legal advice about the effects of signing the agreement (this ensures that the requirement of understanding MPA rights is met); and
  • properly signed Certificates of Independent Legal Advice must be attached to the agreement (each of your lawyers will provide you with these).
Remember

The division of matrimonial property is separate from spousal support and child support. This means that you have can have rights for all 3 issues, and you do not have to give up your right to one for “more” of another. And in the case of child support, you cannot just “contract out” because child support is the right of the child.

For more information, see the Coming to an Agreement on Your Own Information Page.

Tip

Reaching an agreement about the division of your property can take a while. Keep in mind that there are time limits for filing an MPA application (see the “Time limits to apply under the Matrimonial Property Act” section on the Law tab of this Information Page). If you are nearing that time limit and you have not yet filed your MPA claim, you may wish to considering filing (even if you are still negotiating).

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.

Agreements resulting from out-of-court options

For any of these out-of-court options, the goal is to reach an agreement. This means that everyone involved will have worked out solutions for:

  • the issues you have now; and
  • how you will deal with future problems.

Keep in mind that making agreements can be tricky and complex. There are many things to consider. For more information on the process and requirements of making an agreement, as well as things to watch out for, see the Coming to an Agreement on Your Own Information Page.

Be Aware

Court staff cannot help with the drafting or completion of the agreement.

Turning your agreement into a consent order

Having an agreement does not mean that the other party will necessarily follow that agreement. For that reason, once you have an agreement you may wish to turn it into a consent order that sets out the same terms and conditions as your agreement. Having a court order makes it a little easier to take action to enforce your agreement if you need to.

However, you can only file a consent order if there is already an action started in the Court of Queen’s Bench. Chances are, by the time you have an agreement, you will have already started a court action. This is because you have to involve the courts anyway if you want to get the “divorce” part of a separation. For more information about getting a divorce, see the Ending a Married Relationship Information Page.

If you do not yet have a court action started, you can start one—see the “Before you go to court: Get to know the court system” section below. Once you have a court action started, you can turn your agreement into a Consent Order.

For more information on how to create a consent order, see the “Consent orders” section below. Once your agreement is turned into an Order, if you need to apply for enforcement later, you can do so.

Hiring a lawyer or representing yourself?

If you go to court, you can choose to either be represented by a lawyer, or to represent yourself. If you choose to represent yourself, you will be called a “self-represented litigant.”

Hiring a lawyer

If you hire a lawyer, your lawyer will explain to you what is happening with your case and why. A lawyer can help you reach an out-of-court agreement, or represent you in court.

However, even if you do have a lawyer, you may wish to continue reading this (and other Information Pages) to educate yourself further.

For more information about your options for legal representation and other legal help, see the Community Legal Resources & Legal Aid Information Page and the Working with a Lawyer Information Page.

Representing yourself

As a self-represented litigant, you can find some help at Resolution and Court Administration Services (RCAS). 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.

RCAS does not generally provide help when the only issue being addressed is division of property. However, if you are also dealing with issues about children or support, RCAS may be able to help. For information about how RCAS can help you, see the following resource.

Web Resolution and Court Administration Services
Government of Alberta
English
Be Aware

If you choose to go to court, some RCAS services might be mandatory. This means that you must use those services. This can depend on where you live and what kinds of issues you are taking to court (especially if there are child-related issues).

If you are filing under the Family Law Act, see the following Information Pages:

If you are filing under the Divorce Act, see the following Information Pages:

In some courthouses, you may have the option of speaking with “duty counsel.” Duty counsel are volunteer lawyers who will discuss your legal issue with you for free. This can include what the judge may think of your requests and the “merits of your claim.” There are no income restrictions to speak with duty counsel, but the service is limited. They are only at certain courthouses on certain days. Also, there may be many people waiting to speak with them. If you need to speak to duty counsel, make sure you get to the courthouse early. Check with your judicial centre to verify the times and days duty counsel will be available.

For information about what matters duty counsel can help with, and which judicial centres have duty counsel available, see the following resource.

Web Duty Counsel - Legal Assistance at Court
Legal Aid Alberta
English

The Court of Queen’s Bench has created a Court Procedure Booklet that has helpful information.

Before you go to court: Is this the right court to file in?

To determine this, there are several issues to consider.

Is Alberta the right province in which to go to court?

Should you be making your application using a similar law in a different province or a different country? For more information, see the Family Breakdown and Out-of-Province Issues Information Page.

Is this the correct judicial centre?

Alberta is divided into several areas called “judicial centres” (previously called “judicial districts”). The judicial centre that you must use depends on what has happened so far in your case.

Starting or responding to an action under the Matrimonial Property Act

A person starting an action under the Matrimonial Property Act must usually file their court documents (“pleadings”) in the judicial centre where they live.

When pleadings are filed, the Court creates a “file” in the judicial centre where those pleadings were filed. Any additional documents must be filed in the judicial centre where the court file is located.

Starting or responding to an Application under the Matrimonial Property Act

In general, to make an Application under the Matrimonial Property Act, there must be an “action” already started. In other words:

  • a “Statement of Claim for Division of Matrimonial Property” or “Statement of Claim for Divorce and Division of Matrimonial Property” has already been filed; or
  • a “Statement of Claim for Division of Matrimonial Property” or “Statement of Claim for Divorce and Division of Matrimonial Property” must be filed at the same time as the forms related to the Application.

These Statement of Claim forms are part of the “pleadings.” The “Statement of Defence” that is filed is also part of the pleadings. See the “Divorcing spouses: Starting a matrimonial property action and a divorce action at the same time”” section below for more information about pleadings.

Be Aware

Applications for exclusive possession are an exception. They do not require that a court action be started. For more information about applying for exclusive possession, see the “Making an Application for exclusive possession: Your choices” section below.

If a Matrimonial Property Act action is being started at the same time

A person starting to a Matrimonial Property Act action must usually file their documents and go to court in the judicial centre where they live.

As a result, if:

  • this is the first application under the Matrimonial Property Act; and
  • pleadings are filed at the same time

you will file all of the documents in the judicial centre where you live. This will start the court “file.”

If a Matrimonial Property Act action has already been started

When pleadings are filed, the Court creates a “file” in the judicial centre where those pleadings were filed.

In the Court of Queen’s Bench, there is a rule that says that once a court file is started, any additional documents must be filed in the judicial centre where the court file is located. As a result, if an action has already been started, you will likely have to file your Application documents in the judicial centre where your court file is located. Also, any hearing related to Applications will take place in the judicial centre where your court file is located.

If it is an Application for exclusive possession and no Matrimonial Property Act action has been started

A person starting an Application for exclusive possession under the Matrimonial Property Act must usually file their Application documents and go to court in the judicial centre where they live. For more information about applying for exclusive possession, see the “Making an Application for exclusive possession: Your choices” section below.

If there are difficulties with the judicial centre

If at any point you want to change the judicial centre, you will have to make a separate application for that. You must apply in the judicial centre where your court file is located. The judge may or may not allow the transfer. To apply to change the judicial centre, use the following kit.

If you live far away from the location of the hearing and cannot attend in person, you may be able to attend by video or telephone. Contact the court clerks well before the hearing date to arrange that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

If you have questions about any of this, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English
Before you go to court: Get to know the court system

Before filing any documents, you will need to learn about the court process. It is not simple and there are many rules. If you represent yourself, you will need to follow the required processes and the rules.

Starting a court action

While you are dealing with your matrimonial property, it is important to keep in mind that you will never get a divorce without involving the court system. In other words, even if you agree on everything to do with the property, if you ultimately also want a divorce, you will still have to start a court action in Queen’s Bench.

For this reason, many spouses are encouraged to file a “Statement of Claim for Divorce” as a first step. This is the form that starts the divorce action. Then, if they need to “go to court” to decide any other issues, the divorce action will have already been started (which saves time). The divorce action can be filed at the same time as an action for matrimonial property: in such a case the form is called “Statement of Claim for Divorce and Division of Matrimonial Property.” For more detailed information about this, see the “Divorcing spouses: Starting a matrimonial property action and a divorce action at the same time” section below.

However, you do not need to start a divorce action in order to have a court hearing about matrimonial property. Instead, you can file a “Statement of Claim for Division of Matrimonial Property.” For more detailed information about this, see the “Non-divorcing spouses: Starting a matrimonial property action without divorce paperwork” section below.

Also, even if you do start a court action for divorce or to deal with matrimonial property, that does not mean that you have to let a court decide the issues for you, or that you must actually “go to court.” In other words, you may not have to be in a courtroom in front of a judge. Some people never end up going to court. In Alberta, you can get a “desk divorce,” which can include issues such as custody/access, child support, spousal support, and division of property. It is called a “desk divorce” because you do not have to appear in front of a judge. Instead, your paperwork is simply sent up to a judge’s office and is dealt with at the judge’s desk.

What are “Applications”?

“Applications” are smaller, individual parts of the court action, where one of the parties asks something of the Court. It is a court hearing used to temporarily solve some matters before coming to a final agreement, or before the case is permanently decided at a trial.

For example:

  • You and your spouse may have some money in a savings account, but it is all in your spouse’s name.
  • You need most of that money in order to leave the matrimonial home and find a new home.
  • Your spouse refuses to let you have the money, and the bank will not give it to you without your spouse’s permission or a court order.
  • The Court could order that you be allowed to use that money right now, but then the issue of whether you will have to pay back some of that money to your spouse will still have to be figured out later.

Applications are heard in “chambers” or “special chambers”—see “What to expect in court” just below for more information about that.

If you and your spouse disagree about any separation or divorce-related topics, you may need to file one or more Applications to have the Court hear the issues and decide for you. Applications can only be used for topics brought up in your pleadings. If a topic was not included in the pleadings, it cannot be brought up in an Application.

Be Aware

In order to make an Application for an issue related to property (other than exclusive possession), you will need to have a Matrimonial Property Act action started.

You can file your first Application at the same time as you file your “Statement of Claim for Divorce” or “Statement of Claim for Divorce and Division of Matrimonial Property.” If your Statement of Claim has already been filed, you can file an Application on its own.

You can also file an Application about matrimonial property at the same time as you file Applications about other separation and divorce-related topics. If you do so, there are 2 things to keep in mind:

  1. Remember that child-related topics and support-related topics can be dealt with in Applications either under the Divorce Act or the Family Law Act. If you choose the Family Law Act, you can have your Application heard in either the Court of Queen’s Bench or the Provincial Court of Alberta. However, matrimonial property applications can only be heard in the Court of Queen’s Bench. Therefore, if you are dealing with child-related topics and support-related issues in the Provincial Court, you will not be able to combine those applications with a matrimonial property application. For more information about this choice, see the “Using the Divorce Act or the Family Law Act” section of the Ending a Married Relationship Information Page.
  2. If you want combine a matrimonial property application with a custody or access application under the Divorce Act, you must already have a divorce file started in the Court of Queen’s Bench. In other words, there has to have been a “Statement of Claim for Divorce” or “Statement of Claim for Divorce and Division of Matrimonial Property” filed.
Remember

Just because you have started an Application does not mean that you will now have to resolve everything through court hearings. At any time, you can still come to an agreement and turn that agreement into a Consent Order. For more information about how to do this, see the “Consent orders” section below.

Even though a chambers decision is not usually a “final” decision, the parties can choose to treat a chambers decision as a permanent solution.

For example:

  • You and your spouse own a home together in joint names.
  • Your spouse would like to keep the house and pay you your share of it (“buy you out”).
  • Your spouse has been trying to gather enough money to buy you out, but it is not working, and you really need the money in order to get set up with a new home.
  • You cannot wait any longer.
  • You can ask the Court to make an order that the house be sold and the proceeds split equally between you and your spouse.
  • Your spouse does not think there should be an equal split.
  • The Court can, for now, order that the house be sold and the proceeds split equally between you and your spouse.
  • If you and your spouse are not able to resolve your disagreement about unequal division, you can bring the matter to trial later on.
  • You do not have to go to trial.

What to expect in court

Family court matters are not like you see on television. They do not usually go straight to trial. Instead, many matters are resolved in “chambers.” Chambers is where Queen’s Bench “pre-trial” hearings take place. These hearings are in courtrooms that are open to the public, where the judge hears a list of different cases by different people. Yours is one case on the list.

In family law, there are 2 kinds of chambers:

  • regular chambers (sometimes called “morning chambers”); and
  • special chambers (sometimes called “afternoon chambers”).

Regular chambers is meant for simpler matters that can be heard in 20 minutes (10 minutes for each party to present his or her case). Special chambers is for more complex matters that need more time. For more information about chambers, see the Understanding the Court System and Processes Information Page.

Be Aware

The rules for regular chambers are very different than the rules for special chambers. For example: in special chambers, the parties must send in a specific document called a “confirming letter.” Also, there are very detailed and strict rules about scheduling, paperwork, and deadlines. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource.

Judges in chambers can give various kinds of orders. For example, they can:

  • Make orders that deal with procedures and rules. For example, if you request an exception to a particular court rule. This means you are asking for permission to not follow that rule.
  • Make “interim orders.” Interim orders are “temporary” orders, meant to provide short-term solutions while the parties work out longer-term plans. Interim orders can be for a set period of time. Or they may have no set ending time.
  • Make “orders” about family law matters (such as issues about property division). These orders are generally not the final decision in a matter. Usually, a final decision comes only after trial. That decision is called a “judgment.” However, many parties choose to never go to trial. Instead they just accept the orders granted in applications as a permanent solution. They never go to trial and get a final “judgment.”

Some divorcing couples can resolve their issues in chambers. They move forward without ever needing to go to trial. Other parties need to go to trial to resolve their issues (sometimes all of their issues, sometimes only some of them).

For more information on the court process, including chambers, interim orders, and going to trial, see the Understanding the Court System Information Page.

Queen’s Bench “Practice Notes”

“Practice Notes” are additional rules issued by the Court, often about court procedures. These rules are not just for lawyers—you must follow them even if you are representing yourself. For a list of the Practice Notes about family law, see the following resource.

Web Court of Queen's Bench: Practice Notes
Government of Alberta
English
Click on the “Family” tab.

Scheduling hearings and giving notice to the other party

The sections below will explain all of the paperwork that needs to be completed for chambers hearings. You will learn that there are rules about:

  • how to schedule hearing dates; and
  • when you have to let the other party know about the application. This is called “giving notice.”

The court has these rules to make sure that everyone has enough time to prepare for court and no one is taken by surprise. This leads to fairer results.

Because of this, courts are quite strict about the rules. However, sometimes there are good reasons to not follow the rules. In such cases, you may want to ask for an “exception” to the rules. This means you are asking for permission to not follow the rules.

For example, it may be possible to:

  • get time limits shortened for giving notice to the other party (this is also called “abridging” the time); and
  • get court dates moved up to an earlier date.
Be Aware

These changes in the rules are for special situations. There must be a very good reason to request an exception. Also, if you ask for an exception, there are very specific steps that you must follow.

Also, in some cases it is possible to make an application without giving any notice to the other party. This is called making an “ex parte” application. For example, this can happen:

  • if you cannot find the other party, or
  • when your safety (or your children’s safety) may be at risk if you give the other party notice ahead of time.
Be Aware

The scheduling requirements for regular chambers are very different than the rules for special chambers, and the Court is very strict about them. These requirements are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource.

For information about whether you can ask for any of these exceptions, contact the Court of Queen’s Bench in your judicial centre, or call Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

 

Making an Application for exclusive possession: Your choices
Queen's Bench

All applications for exclusive possession must be heard in the Court of Queen’s Bench.

To get an order for exclusive possession, you will have to make an application in the Alberta Court of Queen’s Bench. However, the exact paperwork that you need to fill out will depend on whether or not you already have an action started under the Matrimonial Property Act.

If a Matrimonial Property Act (MPA) action has already been started (whether or not you also started a divorce action), you can apply for exclusive possession under the MPA.

If there is no matrimonial property action started yet, you have 2 choices:

  1. start an action under the Matrimonial Property Act and apply for exclusive possession at the same time (as an application under the MPA); or
  2. apply for exclusive possession using the Family Law Act (FLA).

Which choice is best for you will depend on what has already happened in your case so far and what else you might be applying for. Also, it is important to understand that under the Family Law Act, you can only apply for exclusive possession if you are also applying for child support and/or partner support at the same time.

Each choice is described in more detail in the next 4 sections below.

  • The first 2 sections are about applying for exclusive possession under the Matrimonial Property Act (one section for the person making the application, and one section for the person responding to the application).
  • The next 2 sections are about applying for exclusive possession under the Family Law Act (one section for the person making the application, and one section for the person responding to the application).
Making an Application for exclusive possession under the Matrimonial Property Act

Is/was there domestic violence?

If there is/was domestic violence in your family, you can bring it up in your court documents, especially if the violence provides the reason for some or even all of your requests. For information about how the presence of domestic violence can affect your paperwork, see the following resource.

Presentation Overview of Family Law
YWCA Canada
English

For even more information, see the Family Violence and the Legal Process Information Page.

If you want to apply for a protective order, see the Protective Orders Information Page. The options available to you at this point may affect how you choose to proceed with your other matters.

If a matrimonial property action has already been started

If a Matrimonial Property Act (MPA) action has already been started (whether or not you also started a divorce action), you can make your application for exclusive possession at any time. See the “Completing the application for exclusive possession” heading just below for the information and forms you will need.

If there is no matrimonial property action started yet

If there is no matrimonial property action started yet, you will need to start one.

There are 3 ways to start an action under the Matrimonial Property Act:

  1. Start an MPA action without also starting a divorce action. There will be a fee. For information about how to do that, see the “Non-divorcing spouses: Starting a matrimonial property action without divorce paperwork” section below.
  2. Start an MPA action and an action for divorce at the same time by using a “Statement of Claim for Divorce and Division of Matrimonial Property.” There will be a fee. For information about how to do that, see the “Divorcing spouses: Starting a matrimonial property action and a divorce action at the same time” section below.
  3. If you have already started a divorce action, you can change (also called “amend”) the Statement of Claim to include the property action. For information about how to do that, see the Ending a Married Relationship under the Divorce Act Information Page.
Tip

If you are starting an action under the Matrimonial Property Act to make your application for exclusive possession, you will then be filing your Statement of Claim at the same time as your application for exclusive possession. If that is the case, pay close attention to the date chosen for the court hearing to make sure your spouse will have enough time to: 1) respond to your Application documents, and 2) complete a Statement of Defence.

Completing the application for exclusive possession

To complete the application for exclusive possession, you will need to use both of the following forms. These links only open in Internet Explorer. Learn how you can view these forms in Chrome and Firefox.

  • A general Family Application form. This is where you tell the court what you are asking for.
  • An Affidavit. This is where you include the facts that the court will need to see (the form has clear instructions to let you know what information the court will want to see). All of the documents that you want the judge to see must be written about in the Affidavit and attached to your paperwork. For more in-depth information about how to complete an Affidavit (including what you should not put in it), see the Understanding the Court Process Information Page
Be Aware

There are very detailed and strict rules about the length of affidavits and the kind of evidence that can go in them. These rules are not just for lawyers—you must follow them even if you are representing yourself. If you want to ask for an exception to these rules, you will need ask permission of the court. There is a very specific procedure for doing that. For more information, see the following resource and call your Court of Queen’s Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The Court of Queen’s Bench has also created a general information kit to help self-represented litigants with the process of bringing an Application to court.

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork and choosing a court date

At the courthouse, and with the help of a court clerk, you will be able to pick a court date. When choosing a date, you will need to factor in the time that you will need to “serve” your spouse with the paperwork (next step). You will also need to give your spouse enough time to respond to your application.

Your matter will be scheduled in “chambers.” This is where one judge sits in an open courtroom (meaning anyone can come in) and hears a list of different matters by different people. Yours is just one case on the list.

Depending on your location and the amount of time your matter is expected to take, you may have to appear in regular chambers (also called “morning” chambers) or in special chambers (also called “afternoon” chambers).

  • Regular chambers is for matters where each party can present their side in 10 minutes or less (for a total of 20 minutes).
  • Special chambers is for matters that require more than 20 minutes in total.

The court clerk will help you figure out what time you are to appear.

Be Aware

The rules for regular chambers are very different than the rules for special chambers. For example: in special chambers, the parties must send in a specific document called a “confirming letter.” Also, there are very detailed and strict rules about scheduling, paperwork, and deadlines. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource.

After you have been given a court date, write down the court date on the first page of all of the copies of your application. The clerk will stamp and keep the original copies of all of your documents and will return the stamped copies to you. All documents must have a court stamp on them. These copies are what you will need for the next step.

“Serving” the paperwork

Once all of your paperwork is in order and properly signed and filed, you will need to “serve” it on the other party. “Service” is the legal term for delivering certain kinds of documents. This is to notify the other party that a hearing is taking place. This means you have to make sure that he or she gets the notice as soon as possible. This is also a very important step, because if the paperwork is not properly served, the judge might not hear your matter. For more information on how to serve documents, see the Understanding the Court Process Information Page.

However, there are certain very limited situations in which the other party does not need to be notified of the hearing. This is called an “ex parte” hearing. For more information on these situations, see the Understanding the Court Process Information Page.

“Proving” that the paperwork was served

It is not enough for you to just serve the other party. You must also prove that you served the other party. To do so, the person who served the paperwork must swear an Affidavit of Service. This form must be completed by the person who completed the service, and filed before the court date. You will also need to bring a copy of this form with you to court.

Get ready for the response

Before the court date, your spouse will be serving you with his or her response. Be aware that there are time limits in which your spouse must respond (see the “Responding to an Application for exclusive possession under the Matrimonial Property Act” section below). You will need to read his or her paperwork to make sure that you are ready for your court date.

There are 2 ways in which your spouse can respond:

  1. They can file an Affidavit in response to your Application. This is called an “Affidavit in Response.” In his or her Affidavit, your spouse can state whether he or she agrees or disagrees with what you asked for. However, in an Affidavit, he or she is not allowed to ask for anything of his or her own.(For more information about the rules around Affidavits, see the Understanding the Court Process Information Page.)
  2. They can file an Affidavit in response to your application, and they can file an “Application” of their own, in order to “ask for” something of their own. This is called a “cross-application.” This starts another Application, and an entirely new round of responses.

See just below for your options on how to respond to your spouse’s Response (if you want to respond).

Do you need to respond to your spouse’s Response?

If your spouse responded with only an Affidavit

If your spouse only filed an Affidavit, you may be able to file a Supplemental Affidavit. You can only use a Supplemental Affidavit to change some factual information. This could be either something that has changed since you filed your first Affidavit, or to respond to some updated factual information provided by your spouse. In your Supplemental Affidavit, you should explain how the information is new and why it was not available when you first completed your forms. You cannot use Supplemental Affidavits to repeat the same facts or to make arguments. For more information about the rules around Affidavits, see the Understanding the Court Process Information Page.

If you were given a court hearing in regular chambers (sometimes called “morning chambers”), there may not be enough time to file a Supplemental Affidavit. For that reason, Supplemental Affidavits are less common in morning chambers. Supplemental Affidavits are more common in special chambers (sometimes called “afternoon chambers”). No matter which kind of chambers hearing you have, if you really need to file a Supplemental Affidavit, you may need to ask for an “adjournment” (delaying the hearing until a later date). For information about how to do that, see the “Going to and being in chambers” section below.

Be Aware

There are very detailed and strict rules about the number and length of affidavits you are allowed in chambers. You will likely have to ask for the Court’s permission before filing a Supplemental Affidavit. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen's Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The form for a Supplemental Affidavit is below.

PDF Affidavit - Supplemental
Government of Alberta
English
Remember

You will need to file and serve this Supplemental Affidavit as well, so give yourself enough time. Be aware of the general rule that all documents must be filed with the Court within a “reasonable time” before the date of the court hearing. Exact timelines can vary by judicial centre. Although a judge may allow an exception to this rule, he or she is not required to do so. Also, you risk that your matter will be adjourned (delayed until a later date) because you did not give your spouse enough time to review your documents.

If your spouse responded with an Affidavit and a Cross-Application

If your spouse responded with both an Affidavit and an Application of their own, you now become:

  • the Applicant in your own Application; and
  • the Respondent in your spouse’s Application.

When there are cross-applications, it gets very confusing as to which documents go with which Applications, and whose turn it is to do what. You can do the following things to make it easier:

  • keep all of the paperwork together;
  • keep things well organized (for example: in a binder);
  • mark deadlines and court hearings on a calendar; and
  • maybe even draw a little chart for yourself.

As a result, it is now your turn to file a “response” to the new application (see the “Responding to an application for exclusive possession under the Matrimonial Property Act” section below). Your spouse will then be able to file a Supplemental Affidavit to your response, if he or she wants to (as described above).

Be Aware

There are very detailed and strict rules about cross-applications. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen's Bench Chambers Clerk.

Plan to go to the chambers hearing

When you filed your paperwork with the Court, you were given a court date and time. You need to be there on that day. For more information, see the “Going to and being in chambers” section below.

If you live far away from the location of the hearing and cannot attend in person, you may be able to attend by video or telephone. Contact the court clerks well before the hearing date to arrange that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English
Responding to an Application for exclusive possession under the Matrimonial Property Act

You have been served with forms telling you that there will be a hearing where your spouse will ask for exclusive possession of the matrimonial home (and likely the things in it). In these forms, you have been notified of the date of the court hearing. If you agree with everything that is in those documents, you do not have to do anything. If you disagree with anything that is in those documents, you will need to complete a Response.

When a person applies for exclusive possession, there 2 different sets of forms that he or she can use. The choice of forms will depend on whether or not a matrimonial property action has been started (or is being started at the same time).

It is very important that you carefully read the forms that you were served with, and respond with the correct forms.

  • If the forms you were served with say “Family Law Act” and are called “Claim” and “Statements,” you must respond using Family Law Act forms. The forms from your spouse about exclusive possession will also have “Statements” requesting child support and/or partner support. If your spouse used these forms, that means that no matrimonial property or divorce action has been started.
  • If the forms say “Alberta Rules of Court” and are called “Application,” you must respond with matrimonial property forms.

This section is for people responding to an application for exclusive possession made under the Matrimonial Property Act. If your spouse applied under the Family Law Act, see the “Responding to an Application for exclusive possession under the Family Law Act” section below instead.

All of the links below take you to an electronic version of the forms (where available). You can also get paper copies of all of these forms at Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

If you were also served with documents starting an action for division of matrimonial property

When you were served with an application for exclusive possession, you may also have been served with other documents as well. Specifically:

  • You may also have been served with documents that started an action for division of matrimonial property under the Matrimonial Property Act. You will want to decide how you want to respond to this as well. For information about that, see the “Non-divorcing spouses: Responding to your spouse’s Statement of Claim for Division of Matrimonial Property” section below.
  • You may also have been served with documents that started an action for division of matrimonial property under the Matrimonial Property Act and an action for divorce under the Divorce Act. You will want to decide how you want to respond to this as well. For information about that, see the “Divorcing spouses: Responding to your spouse’s Statement of Claim for Divorce and Division of Matrimonial Property” section below.
Be Aware

The time limits for responding to the Statement of Claim and the Application will probably be different: pay close attention to timelines listed on the forms you receive.

Time limits

Once you have been served with the documents for the Application, you have to complete your response within a “reasonable time” before the hearing. What is considered “reasonable” is different depending on your judicial centre. If you have any questions, contact the court in that area.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

If for any reason you cannot file within the time limits, you may still be able to file the documents late and appear at the court hearing. However, you risk that your spouse will ask for an “adjournment” (a delay of your court date) as he or she did not have enough time to prepare for the hearing. Or the judge may give your spouse what he or she has asked for without taking your documents into consideration because they were not filed in time.

Be Aware

For matters in special chambers, there are additional rules about response times and deadlines. These rules are very specific and strict, and they are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource.

Is/was there domestic violence?

If there is/was domestic violence in your family, you can bring it up in your court documents. This can be particularly important if the violence is the reason you are making certain requests.

For information about how the presence of domestic violence can affect your paperwork, see the following resource.

Presentation Overview of Family Law
YWCA Canada
English

For more information, see the Family Violence and the Legal Process Information Page.

If you want to apply for a protective order, to help keep you safe, see the Protective Orders Information Page. The choices you make about protective orders may affect the process you need to follow with your other family law matters.

Completing the Response to the Application

When responding to the Application for exclusive possession, you have 3 choices:

  1. Do not file any forms. If you agree with what the Applicant is asking for, you do not have to fill out any documents.
  2. File only an Affidavit. You do this if you disagree with what the Applicant wants, but you are not asking for anything specific of your own. Or, do this if it is not clear what the Applicant is asking for (for example: if your former spouse asks for child support, but does not provide a specific amount).
  3. File an Affidavit and Application of your own. This is called a “Cross-application.” You do this if you disagree with what the Applicant wants, and you are asking for something of your own.

Filing only an Affidavit

If you choose to respond to your spouse’s Application with only an Affidavit, you will need the following form.

Be Aware

There are very detailed and strict rules about the length of affidavits and the kind of evidence that can go in them. These rules are not just for lawyers—you must follow them even if you are representing yourself. If you want to ask for an exception to these rules, you will need ask permission of the court. There is a very specific procedure for doing that). For more information, see the following resource and call your Court of Queen’s Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Filing an Affidavit and a Cross-Application

If you are responding to your spouse’s Application by filing a cross-application of your own, you will need to review the “Making an Application for exclusive possession under the Matrimonial Property Act” section above, as you will be an “applicant” in your cross-application.

You will need the following forms.


A few things you should know:

  • In your Affidavit, you can include facts that respond to the documents completed by your spouse and the requests you are making in your own Application.
  • Usually it makes sense to choose the same hearing date as the date listed on your spouse’s Application (if that is possible), so that both Applications can be heard at the same time.
  • There are now 2 applications with various time requirements. You and your spouse may need more time to review and file all of the paperwork. So you may need to ask for an adjournment of your hearing. For information about how to do that, see the “Going to and being in chambers” section below.
Be Aware

There are very detailed and strict rules about scheduling cross-applications. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen’s Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork

To file the paperwork, you must hand in the originals and multiple copies of everything. One copy of each document is for you and one is for any other parties. You file the documents at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The clerk will stamp and keep the original copies of all of your documents and will return the stamped copies to you. All documents must have a court stamp on them. These copies are what you will need for the next step.

“Serving” the paperwork

Once all of your paperwork is in order and properly signed, you will need to “serve” it on the other party. “Service” is the legal term for delivering certain kinds of documents. This is the same as you were served with their paperwork to begin with. You have to make sure that he or she gets the notice as soon as possible. This is also a very important step, because if the paperwork is not properly served, the judge might not hear your matter.

For more information on how to serve documents, see the Understanding the Court Process Information Page.

“Proving” that the paperwork was served

It is not enough for you to just serve the other party. You must also prove that you served the other party. To do so, the person who served the paperwork must swear an Affidavit of Service. This form must be completed by the person who completed the service, and filed before the court date. You will also need to bring a copy of this form with you to court.

Watch for your spouse’s response

If you responded with only an Affidavit

If, in response to your spouse’s Application, you filed only an Affidavit, your spouse may file a “Supplemental Affidavit.” Be sure to read that when you get it.

Be Aware

You cannot file a Supplemental Affidavit in response to your spouse’s Supplemental Affidavit: that is not permitted.

If you responded with an Affidavit and a Cross-Application

If you responded with both an Affidavit and an Application of your own, your spouse is now the Applicant in his or her Application, and the Respondent in your Application.

As the Respondent to your Application, your spouse can file a “response” to your Application. Watch for that response, and be sure to read it when you are served with it.

When you are served with your spouse’s response to your Application, you may be able to file a “Supplemental Affidavit.” You can only use a Supplemental Affidavit to change some factual information. This could be either something that has changed since you filed your Application, or to respond to some updated factual information provided by your spouse. In your Supplemental Affidavit, you should explain how the information is new and why it was not available when you first completed your forms. You cannot use Supplemental Affidavits to repeat the same facts or to make another argument. For more information about the rules around Affidavits, see the Understanding the Court Process Information Page.

Be Aware

There are very detailed and strict rules about the number and length of affidavits you are allowed in chambers. You will likely have to ask for the Court’s permission before filing a Supplemental Affidavit. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen's Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

If you were given a court hearing in regular chambers (sometimes called “morning chambers”), there may not be enough time to file a Supplemental Affidavit. For that reason, Supplemental Affidavits are less common in morning chambers. Supplemental Affidavits are more common in special chambers (sometimes called “afternoon chambers”). No matter which kind of chambers hearing you have, if you really need to file a Supplemental Affidavit, you may need to ask for an “adjournment” (delaying the hearing until a later date). For information about how to do that, see the “Going to and being in chambers” section below.

The form for a Supplemental Affidavit is below.

PDF Affidavit - Supplemental
Government of Alberta
English
Remember

You will need to file and serve this Supplemental Affidavit as well, so give yourself enough time. Be aware of the general rule that all documents must be filed with the Court within a “reasonable time” before the date of the court hearing. Exact timelines can vary by judicial centre. Although a judge may allow an exception to this rule, he or she is not required to do so. Also, you risk that your matter will be adjourned (delayed until a later date) because you did not give your spouse enough time to review your documents.

Plan to go to the chambers hearing

The Application tells you when and where court will be held. Go to that hearing. If you do not go to court on that day, the court may make an order without you there. For more information, see the “Going to and being in chambers” section below.

If you live far away from the location of the hearing and cannot attend in person, you may be able to attend by video or telephone. Contact the court clerks well before the hearing date to arrange that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English
Making an Application for exclusive possession under the Family Law Act

If there is no Matrimonial Property Act action started, or if you do not want to start one, you can choose to apply for exclusive possession under the Family Law Act (FLA).

However, under the Family Law Act, you can only apply for exclusive possession if you are also applying for child support and/or partner support at the same time.

Is/was there domestic violence?

If there is/was domestic violence in your family, you can bring it up in your court documents. This can be particularly important if the violence is the reason you are making certain requests.

For information about how the presence of domestic violence can affect your paperwork, see the following resource.

Presentation Overview of Family Law
YWCA Canada
English

For more information, see the Family Violence and the Legal Process Information Page.

If you want to apply for a protective order to help keep you safe, see the Protective Orders Information Page. The choices you make about protective orders may affect the process you need to follow with your other family law matters.

Completing the Claim and Application for exclusive possession

To ask for exclusive possession under the Family Law Act, you must use the following forms. These links only open in Internet Explorer. Learn how you can view these forms in Chrome and Firefox.

PDF Claim - Family Law Act (Form FL-10 / CTS3459)
Government of Alberta
English


PDF Affidavit of Service - Applicant (CTS3513)
Government of Alberta
English
Be Aware

There are very detailed and strict rules about the length of Statements and the kind of evidence that can go in them. These rules are not just for lawyers—you must follow them even if you are representing yourself. If you want to ask for an exception to these rules, you will need ask permission of the court. There is a very specific procedure for doing that. For more information, see the following resource and call your Court of Queen’s Bench Chambers Clerk.

PDF Court of Queen's Bench of Alberta: Family Law Practice Note 2 - Family Law Chambers
Government of Alberta
English
This refers to “Affidavits” but the rules apply to “Statements” as well.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Completing the support forms

Remember

Under the Family Law Act, you can only apply for exclusive possession if you are also applying for child support and/or partner support at the same time.

To apply for support, you must use the Family Law Act “Statement - Child Support” and/or the “Statement - Partner Support” as well as the “Budget” form. Do not complete these forms without first learning about the law around child support and spousal support under the Family Law Act.

You can find this information, as well as the forms you will need to file, on the Process tabs of these Information Pages:

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork

To file the paperwork, you must hand in the originals and multiple copies of everything. One copy of each document is for you and one is for any other parties. You file the documents at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

At the courthouse, and with the help of a court clerk, you will be able to pick a court date. When choosing a date, you will need to factor in the time that you will need to “serve” your spouse with the paperwork (next step), and you will need to give your spouse (known as the “respondent”) enough time to respond to your application (see the “Responding to an Application for exclusive possession under the Family Law Act” section below).

Your matter will be scheduled in something called “chambers.” This is where one judge sits in an open courtroom (meaning anyone can come in) and hears a list of different matters by different people (yours is just one on the list). Depending on your location and the amount of time your matter is expected to take, you may have to appear in court in regular chambers (also called “morning” chambers) or in special chambers (also called “afternoon” chambers). The court clerk will help you figure out what time you are to appear. Regular chambers is for matters where each party can present their side in 10 minutes or less (for a total of 20 minutes). Special chambers is for matters that require more than 20 minutes in total.

Be Aware

The rules for regular chambers are very different than the rules for special chambers. For example: in special chambers, the parties must send in a specific document called a “confirming letter,” and there are very detailed and strict rules about scheduling, paperwork, and deadlines. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource.

For more information on chambers, see the Understanding the Court Process Information Page.

After you have been given a court date, write down the court date on the first page of all of the copies of your application. The clerk will stamp and keep the original copies of all of your documents and will return the stamped copies to you. All documents must have a court stamp on them. These copies are what you will need for the next step.

“Serving” the paperwork

Once all of your paperwork is in order and properly signed and filed, you will need to “serve” it on the other party. “Service” is the legal term for delivering certain kinds of documents. This is to notify the other party that a hearing is taking place. This means you have to make sure that he or she gets the notice as soon as possible. This is also a very important step, because if the paperwork is not properly served, the judge might not hear your matter. For more information on how to serve documents, see the Understanding the Court Process Information Page.

However, there are certain very limited situations in which the other party does not need to be notified of the hearing. This is called an “ex parte” hearing. For more information on these situations, see the Understanding the Court Process Information Page.

There are time limits in which you must complete the service:

  • If the service takes place in Alberta, the service must be completed 20 days or more before the date of the hearing set out in the Claim (you do not count the date of the hearing).
  • If the service takes place outside of Alberta (but still in Canada), the service must be completed one month or more before the date of the hearing set out in the Claim (you do not count the date of the hearing). However, before serving outside of Alberta, you will need to get permission from the Court. This is called an “Order for Service Ex Juris.” For more information about how to get this, see the Understanding the Court Process Information Page.
  • If the service takes place outside of Canada, the service must be completed two months or more before the date of the hearing set out in the Claim (you do not count the date of the hearing). However, before serving outside of Canada you will need to get permission from the Court. This is called an “Order for Service Ex Juris.” For more information about how to get this, see the Understanding the Court Process Information Page.

“Proving” that the paperwork was served

It is not enough for you to just serve the other party. You must also prove that you served the other party. To do so, the person who served the paperwork must swear an Affidavit of Service. This form must be completed by the person who completed the service, and filed before the court date. You will also need to bring a copy of this form with you to court.

PDF Affidavit of Service - Applicant (CTS3513)
Government of Alberta
English
This link only opens in Internet Explorer. Learn how you can view this form in Chrome and Firefox.

Get ready for the response

Before the court date, your spouse will be serving you with his or her Response, along with “Reply Statements” about each topic. Be aware that there are time limits in which your spouse must respond (see the “Responding to an Application for exclusive possession under the Family Law Act” section below). You will need to read his or her paperwork to make sure that you are ready for your court date.

Do you need to respond to your spouse’s Response?

Sometimes, between the time you first file your paperwork and the date of the court hearing, there will be an important change to deal with. You may need to:

  • update some facts about you, such as a change of income or contact details;
  • respond to some updated facts given by the other party; or
  • add something that is related to the relief that you are asking for.

If this occurs, you can let the Court know by filing an “Update Statement.” The form you will need is below. For instructions on how to complete this form, click on the blue box called “Instruction” at the top of the form.

PDF Update Statement (Form FL-79 / CTS3551)
Government of Alberta
English
This link only opens in Internet Explorer. Learn how you can view this form in Chrome and Firefox.

Update Statements are not intended to add information to your argument, or change your original requests in any way. They should only be used to update basic facts related to your case.

If you fill out one of these Update Statements, you should explain:

  • how the information is new; and
  • why it was not available when you first completed your forms.
Be Aware

There are very detailed and strict rules about the number and length of Update Statements you are allowed in chambers. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen's Bench Chambers Clerk.

PDF Court of Queen's Bench of Alberta: Family Law Practice Note 2 - Family Law Chambers
Government of Alberta
English
This refers to “Supplemental Affidavits” but the rules apply to “Update Statements” as well.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

You will need to file and serve this document as well, so give yourself enough time. You must file and serve your documents “within a reasonable time” before the date of the hearing. If this is not done within a reasonable time, it may be considered “prejudicial” (meaning “harmful”) to the other party. If you have any questions, contact the court in that area.

Web Resolution and Court Administration Services
Government of Alberta
English

If for any reason you cannot serve within a reasonable time, you can still file the documents and appear at the court hearing. However, you risk that your former partner will ask for an “adjournment” (delaying the hearing until a later date) as he or she did not have enough time to prepare for the hearing.

The use of Update Statements should be rare. The Court may limit the use of them if it feels that they are being used inappropriately.

Be Aware

Your spouse may also use an Update Statement to reply to your Update Statement.

Plan to go to the chambers hearing

When you filed your paperwork with the Court, you were given a court date and time. You need to be there on that day. For more information, see the “Going to and being in chambers” section below.

If you live far away from the location of the hearing and cannot attend in person, you may be able to attend by video or telephone. Contact the court clerks well before the hearing date to arrange that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English
Responding to an Application for exclusive possession under the Family Law Act

You have been served with forms telling you that there will be a hearing where your spouse will ask for exclusive possession of the matrimonial home (and likely the things in it). In these forms, you have been notified of the date of the court hearing. If you agree with everything that is in those documents, you do not have to do anything. If you disagree with anything that is in those documents, you will need to complete a Response.

When a person applies for exclusive possession, there 2 different sets of forms that he or she can use. The choice of forms will depend on whether or not a matrimonial property action has been started (or is being started at the same time).

It is very important that you carefully read the forms that you were served with, and respond with the correct forms.

  • If the forms you were served with say “Family Law Act” and are called “Claim” and “Statements,” you must respond using Family Law Act forms. The forms from your spouse about exclusive possession will also have “Statements” requesting child support and/or partner support. If your spouse used these forms, that means that no matrimonial property or divorce action has been started.
  • If the forms say “Alberta Rules of Court” and are called “Application,” you must respond with matrimonial property forms.

This section is for people responding to an application for exclusive possession under the Family Law Act. If your spouse applied under the Matrimonial Property Act, see the “Responding to an Application for exclusive possession under the Matrimonial Property Act” section above instead.

All of the links below take you to an electronic version of the forms (where available). You can also get paper copies of all of these forms at Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

Time limits

Once you have been served with documents, you have to respond within a certain amount of time. Specifically, you must file your documents “within a reasonable time” before the date of the hearing set out in the Claim. Anything with less than 10 days’ notice will be presumed to be “prejudicial” (meaning “harmful”) to your spouse. In other words: it is best to serve your spouse 10 days (or more) before the date of the hearing.

If for any reason you cannot serve within that time limit, you can still file the documents and appear at the court hearing. However, you risk that your spouse will ask for an “adjournment” (delaying the hearing until a later date) as he or she did not have enough time to prepare for the hearing.

Be Aware

For matters in special chambers, there are additional rules about response times and deadlines. These rules are very specific and strict, and they are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource.

Is/was there domestic violence?

If there is/was domestic violence in your family, you can bring it up in your court documents. This can be particularly important if the violence is the reason you are making certain requests.

For information about how the presence of domestic violence can affect your paperwork, see the following resource.

Presentation Overview of Family Law
YWCA Canada
English

For more information, see the Family Violence and the Legal Process Information Page.

If you want to apply for a protective order to help keep you safe, see the Protective Orders Information Page. The choices you make about protective orders may affect the process you need to follow with your other family law matters.

Responding to the request for exclusive possession

When your spouse filed his or her application, he or she filed a special document called a “Claim.” Read the Claim carefully. You must respond to this Claim by filing a special document called a Response.

To file a Response, you must use the following form. For instructions on how to complete this form, click on the blue box called “Instruction” at the top of the form.

PDF Response - Family Law Act (Form FL-11 / CTS3460)
Government of Alberta
English
This link only opens in Internet Explorer. Learn how you can view this form in Chrome and Firefox.

Fill in the information at the top of the Response form, then pay careful attention to the choices you are given:

  • If you agree with everything that your spouse (known as “the Applicant”) asked for, fill in the form and check the box that says you agree and fill out the rest of form.
  • If you agree with everything that your spouse (known as “the Applicant”) asked for, but you also have things that you want to ask for, check off that you agree in Part 1, then check off the box(es) in Part 2 that say what you will be asking for. This is for topics not already mentioned by the Applicant—in other words, do not check off boxes for topics that the applicant has already checked off on his or her Claim. For each of these boxes that you check off, you must also complete a Statement (explained below).
  • If you do not agree with everything that your spouse (known as “the Applicant”) asked for, check off in Part 1 that you do not agree. Then fill out a “Reply” form to each of the topics brought up by your spouse. For example: if your spouse included a “Statement - Child Support” and you disagree, you must fill out the “Reply Statement - Child Support.” If you want to ask for something that has not yet been brought up, check off the appropriate boxes in Part 2 and fill out the forms required for each of these topics.

You will also need to complete the “Reply Statement - Exclusive Possession of Home - Household Goods” form. For instructions on how to complete this form, click on the blue box called “Instruction” at the top of the form.

Be Aware

There are very detailed and strict rules about the length of Reply Statements and the kind of evidence that can go in them. These rules are not just for lawyers—you must follow them even if you are representing yourself. If you want to ask for an exception to these rules, you will need ask permission of the court. There is a very specific procedure for doing that). For more information, see the following resource and call your Court of Queen’s Bench Chambers Clerk.

PDF Court of Queen's Bench of Alberta: Family Law Practice Note 2 - Family Law Chambers
Government of Alberta
English
This refers to “Affidavits” but the rules apply to “Statements” as well.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Completing the Statements for support

You will also need to complete the “Reply Statement” forms for child support and/or partner support. Do not complete these forms without first learning about the law around child support and partner support under the Family Law Act.

This information and the “Reply Statement” forms you need to fill out can be found on these Information Pages:

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork

To file the paperwork, you must hand in the originals and multiple copies of everything. One copy of each document is for you and one is for any other parties. You file the documents at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The clerk will stamp and keep the original copies of all of your documents and will return the stamped copies to you. All documents must have a court stamp on them. These copies are what you will need for the next step.

“Serving” the paperwork

Once all of your paperwork is in order and properly signed, you will need to “serve” it on the other party. “Service” is the legal term for delivering certain kinds of documents. This is the same as you were served with their paperwork to begin with. You have to make sure that he or she gets the notice as soon as possible. This is also a very important step, because if the paperwork is not properly served, the judge might not hear your matter.

For more information on how to serve documents, see the Understanding the Court Process Information Page.

It is best to serve your spouse 10 days (or more) before the date of the hearing. If you do not, you risk your matter being adjourned (delayed until a later date) because you did not give your spouse enough time to review your documents.

“Proving” that the paperwork was served

It is not enough for you to just serve the other party. You must also prove that you served the other party. To do so, the person who served the paperwork must swear an Affidavit of Service. This form must be completed by the person who completed the service, and filed before the court date. You will also need to bring a copy of this form with you to court.

PDF Affidavit of Service - Respondent (Form CTS3514)
Government of Alberta
English
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Watch for your spouse’s response

Sometimes, between the time the initial application is filed and the date of court hearing, there will be an important change in some factual information about your spouse. If this occurs, he or she will let the court know by filing something called an “Update Statement,” and you would be served with a copy.

Or, there may be some important change in factual information about you, or an additional related request, and you will need to let the court know by filling out an Update Statement of your own. The form you will need is below. For instructions on how to complete this form, click on the blue box called “Instruction” at the top of the form.

PDF Update Statement (Form FL-79 / CTS3551)
Government of Alberta
English
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Be aware that Update Statements are not intended to add information to your argument, or change your original requests in any way. They should only be used to update basic facts related to your case.

If you fill out one of these Update Statements, you should explain how the information is new and why it was not available when you first completed your forms.

Be Aware

There are very detailed and strict rules about the number and length of Update Statements you are allowed in chambers. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen's Bench Chambers Clerk.

PDF Court of Queen's Bench of Alberta: Family Law Practice Note 2 - Family Law Chambers
Government of Alberta
English
This refers to “Supplemental Affidavits” but the rules apply to “Update Statements” as well.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

You will need to file and serve this document as well, so give yourself enough time. Specifically, you must file and serve your documents “within a reasonable time” before the date of the hearing. If this is not done within a reasonable time, it may be considered “prejudicial” (meaning “harmful”) to your spouse. If you have any questions, contact the court in that area.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

If for any reason you cannot serve within a reasonable time, you can still file the documents and appear at the court hearing. However, you risk that your spouse will ask for an “adjournment” (delaying the hearing until a later date) as he or she did not have enough time to prepare for the hearing.

The use of Update Statements should be rare, and the Court may limit the use of them if it feels that they are being used inappropriately.

Plan to go to the chambers hearing

The Application tells you when and where court will be held. Go to that hearing. If you do not go to court on that day, the court may make an order without you there. For more information, see the “Going to and being in chambers” section below.

If you live far away from the location of the hearing and cannot attend in person, you may be able to attend by video or telephone. Contact the court clerks well before the hearing date to arrange that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English
Do you want to get a divorce? And why does that matter?

Most married couples who are separating wish to divorce. However, it is possible to separate without ever getting divorced. You can also deal with your matrimonial property issues without ever getting divorced. Or, you can do both: divorce and deal with your matrimonial property issues. Furthermore, you can do both at the same time, or at different times.

The choices you make will affect the kind of paperwork that you need to complete and the options you will be given. It is very important to keep this in mind to make sure that you follow the correct steps.

Be Aware

This is complicated and can be quite confusing. Be sure to give yourself as much as time as you need to read and process all the information before making a decision and trying to complete any paperwork. You may also wish to consult a lawyer about the different reasons and strategies (including issues of timing) behind the various choices.

The sections that follow are specific to the choices you make at this point:

  • If you decide you want to get a divorce at the same time as dealing with property issues, you will want to look at the sections that begin with “Divorcing spouses:”.
  • If you only want to deal with property issues and don’t want to get a divorce at this time, you will want to look at the sections that begin with “Non-divorcing spouses:”.
Divorcing spouses: Dealing with matrimonial property in a “desk divorce”

As you are dealing with your matrimonial property issues, it is important to keep in mind that you will never get the “divorce” without involving the Court of Queen’s Bench. In other words, even if you agree on everything about property, if you also want a divorce, you will still have to start a court action in Queen’s Bench.

That said, in Alberta it is possible to get something called a “desk divorce.” It is called a “desk divorce” because you do not have to appear in front of a judge in order to get your divorce judgment; instead, your paperwork is simply sent up to a judge’s office and is dealt with at the judge’s desk. In addition to the “divorce” part, the desk divorce can deal with custody/access, child support, and spousal support.

In general, there are 2 kinds of desk divorces:

  1. The “joint” desk divorce: this is where the separating spouses agree on all divorce-related topics (such as spousal support, child support, and custody—this is called the “corollary relief”), and the spouses file a single set of paperwork together that lays out the terms of their divorce and the corollary relief.
  2. The “uncontested” desk divorce: “uncontested” means that the other spouse never responds to the spouse who starts the divorce action.

Each of these desk divorce options is described in more detail below.

However, just because you file a Statement of Claim does not mean that you will have to “go to court” to get your divorce and/or solve your property issues. At any point, you and your spouse can come to an agreement about your issues and file paperwork that finalizes everything, including the “divorce” itself, without going to court. A judge will still need to look at what you have agreed to and make sure that everything has been resolved according to law, but you will not need to have the judge make decisions for you. In other words, if you come to an agreement, you can still get the final judgment by sending the paperwork up to the judge’s desk (and sometimes this is still called a “desk” divorce). For more information, see the “Consent orders” section below.

However, because the Divorce Act does not deal with matrimonial property issues, the “joint desk divorce” and the “uncontested desk divorce” paperwork does not include any documents that deal with property. To solve your property issues, you will need to take additional steps (see below).

Be Aware

Even if the parties have started the paperwork for a contested divorce and have already made one or more applications in court, they can still come to an agreement and get the final judgment by sending the paperwork up to the judge’s desk (and sometimes this is still called a “desk” divorce).

The “joint” desk divorce

A “joint desk divorce” is for situations where the parties have come to an agreement without any Court involvement. For some couples it may be shortly after separation; for others, it may be years later. The key is that no court action for divorce has been started—in other words, no Statement of Claim has been filed yet.

For the paperwork you need for a joint desk divorce, see the “Desk Divorce” section of the Ending a Married Relationship under the Divorce Act Information Page.

However, because the Divorce Act does not deal with matrimonial property issues, the joint desk divorce paperwork does not include any documents that deal with property.

Therefore, if you come to an agreement on your property issues as well, you will have some separate processes and paperwork to complete. Specifically, you could turn your property agreement into a consent order and get it signed by a judge—see the “Consent orders” section below for more information about how to do this.

The “uncontested” desk divorce

In an uncontested desk divorce, one person asks for the divorce (and all the matters that go with it). That person files all of the required paperwork, and the other person does not answer. In other words, they don’t say “no” or make any arguments against the requests. The person has been given the chance to respond. Because they have chosen not to respond, the Court will consider simply granting what was requested by the person who filed the paperwork.

In other words, the uncontested desk divorce starts out like a contested divorce: the plaintiff files a “Statement of Claim for Divorce and Division of Matrimonial Property” and waits for a response (see the “Divorcing spouses: Starting a matrimonial property action and a divorce action at the same time” section below).

In a contested divorce, the defendant responds to the “Statement of Claim for Divorce and Division of Matrimonial Property” within the timelines and then the “contesting” begins (disagreements and attempts to work out the issues). For detailed information about the process for an uncontested divorce and its requirements, see the Ending a Married Relationship under the Divorce Act Information Page.

However, because the Divorce Act does not deal with property issues, the uncontested desk divorce paperwork does not include any documents that deal with property.

Instead, if you want to try to get your property issues dealt with quickly, you may be able to apply for a summary judgment. A summary judgment is a final court decision that resolves an action without having a trial. To ask for a summary judgment, the applicant must show that there is no genuine claim or defence requiring a trial (for example: if the other party never responded, there is arguably nothing being defended).

If you filed a “Statement of Claim for Divorce and Division of Matrimonial Property,” and you have already filed a “Noting in Default” form (which is part of the paperwork for the uncontested desk divorce), you can make your application for a summary judgment without notice to your spouse.

On the other hand, if you have only filed a “Statement of Claim for Divorce,” you would first have to file a “Statement of Claim for Division of Matrimonial Property.” For more information about how to do that, see the “Non-divorcing spouses: Starting a matrimonial property action without divorce paperwork” section below. There will be a filing fee, even if you already paid one when you started your divorce action (there is one each time you file a Statement of Claim). If you receive no response to your “Statement of Claim for Division of Matrimonial Property,” you will need to file a “Noting in Default” form (linked below) for your matrimonial property action. Once you do so, you can make your application for summary judgment without notice to your spouse.

PDF Noting in Default (Form 14 / CTS3784)
Government of Alberta
English
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Applications for summary judgements are made using the regular “Application” form and process—see the “Filing the paperwork for an application (other than exclusive possession)” section below.

An application for summary judgment can only be heard in special chambers (not morning chambers). For more information about making applications in special chambers, see the “Before you go to court: Get to know the court system” section below and the Understanding the Court Process Information Page.

Be Aware

If the summary judgment is granted, the court may or may not give you what you asked for. Or, you may not be granted the summary judgment at all. For example: the judge may decide that more information is needed and may require a summary trial. For information about summary trials, see the Understanding the Court Process Information Page.

Summary judgments and summary trials are a complex area of law. Consider consulting a lawyer for help. For more information, see the Working with a Lawyer Information Page.

Divorcing spouses: Starting a matrimonial property action and a divorce action at the same time (information for the Plaintiff)

As you are dealing with your matrimonial property issues, it is important to keep in mind that you will never get the “divorce” without involving the Court of Queen’s Bench. In other words, even if you agree on everything about property, if you also want a divorce, you will still have to start a court action in Queen’s Bench.

Since most separating spouses do indeed want to get the actual “divorce,” and because many divorces will be contested (meaning there will be disagreement about some issues and the spouses will attempt to solve those disagreements), many separating spouses are encouraged by lawyers to file a “Statement of Claim for Divorce” as a first step. This is the form that starts the divorce action. Then, if they need to “go to court” to decide any of the separation and divorce-related issues (such as child support and spousal support), the action will have already been started (generally making it easier and faster to get a hearing when needed). If they never end up “going to court” (for example, if they agree on all issues), everything simply gets resolved through paperwork.

If the parties file a Statement of Claim for Divorce, they are also generally encouraged to file the paperwork for a Matrimonial Property Act (MPA) action. This requires additional paperwork because matrimonial property is dealt with under a different law than divorce. However, you do not have to start a divorce action at the same time as you start an MPA action. You can file an MPA action on its own. There is information on how to do that in the “Non-divorcing spouses: Starting a matrimonial property action without divorce paperwork” section below.

Be Aware

Once you file a Statement of Claim, you can no longer complete the “joint desk divorce” process described above. Also, if your spouse formally responds to your Statement of Claim, you will no longer be able to complete the “uncontested desk divorce” process described above either.

However, just because you file a Statement of Claim does not mean that you will have to “go to court” to get your divorce and/or solve your property issues. At any point, you and your spouse can come to an agreement about your issues and file paperwork that finalizes everything, including the “divorce” itself, without going to court. A judge will still need to look at what you have agreed to and make sure that everything has been resolved according to law, but you will not need to have the judge make decisions for you. In other words, if you come to an agreement, you can still get the final judgment by sending the paperwork up to the judge’s desk (and sometimes this is still called a “desk” divorce). For more information, see the “Consent orders” section below.

The “pleadings”

The details that are in the Statement of Claim, as well as the details that are in the spouse’s response to the Statement of Claim (see below), are also called “the pleadings.” It is important to know this term, as it may be used in court or on some paperwork.

“Pleadings” are the beginning stages of a lawsuit in which the parties formally submit their claims and defences. This is where each party gets to name all of the topics they want the court to decide about. The pleadings are like the chapters of a book—they give the outline of the book. In other words, they clearly state what issues need to be dealt with, and what questions need to be answered in order to resolve the dispute. Later, you will provide more detail for each “chapter” (through the evidence in your affidavits).

Tip

Be very careful when completing the pleadings to ensure that all details are correct (including the names of the parties). It is not easy to correct or change the pleadings after they are filed.

For information on “closing” the pleadings and “amending” the pleadings, see the Ending a Married Relationship under the Divorce Act Information Page.

Brief summaries of the contested divorce procedure can also be found in the following resources.

Audio/Web The Plaintiff in a Divorce Proceeding
Calgary Legal Guidance
English

Audio/Web The Divorce Procedure
Calgary Legal Guidance
English

Completing the Statement of Claim for Divorce and Division of Matrimonial Property

Unless you are filing for a joint desk divorce, to start your divorce action at the same time as your matrimonial property claim, you must file a “Statement of Claim for Divorce and Division of Matrimonial Property.” With this form you are asking the court to deal with your divorce, deal with things called “corollary relief” (which includes custody, access/parenting time, child support, and spousal support), and the division of your property.

Be Aware

When there are children involved in a divorce, there are also additional documents that must be included with these forms. For a complete overview of the divorce process, see the Ending a Married Relationship under the Divorce Act Information Page.

The person who files the Statement of Claim is called the “Plaintiff.” It is very important that you, as the Plaintiff, include in your Statement of Claim all of the issues you want decided in court. If a topic is not included in “the pleadings,” it cannot be brought up later.

Tip

When you file a Statement of Claim, you do not have to serve it immediately (for example: if the other party is out of the country for a while), but be aware that a Statement of Claim must be served within one year of the date that it is filed, or it will expire. That said, there is the possibility to apply for one 3-month extension.

Property from living together before marriage

Sometimes, spouses live together before marriage. The Matrimonial Property Act does not apply to property that they got before the marriage. If the spouses want that property to be divided after separating, then they would have to divide that property as if they were unmarried. For more information about that, see the Property Division for Unmarried Couples Information Page.

If you are starting a Matrimonial Property Act action, you can include your pre-marriage common-law property claims in your “Statement of Claim for Divorce and Matrimonial Property Division,” so that everything can be heard at the same time. However, remember that the rules of the MPA do not apply to that property. To understand what your options are, and exactly how to make your claims, see the Property Division for Unmarried Couples Information Page.

Completing a Notice to Disclose

When you file your Statement of Claim, there are other sets of forms that you might want to file at the same time. The first is called a “Notice to Disclose/Application.” This is the court document that requires your spouse to provide you with detailed financial information within one month.

You will need this financial information if you plan to have the Court make an order about child support or spousal support. You may also need this information for your matrimonial property issues (for example: if your spouse has been refusing to provide you with the financial information that you need).

If the information is not provided within a month, there will be a court hearing. When you file a “Notice to Disclose/Application,” you are called the “Applicant” and your spouse is called the “Respondent.”

A Notice to Disclose can be filed on its own, or along with the paperwork for one or more other issues related to your divorce or MPA actions.

When you file a Notice to Disclose, you are also setting up a chambers hearing date. If your former spouse has not given you the financial information by the date of that hearing, the Court can take action to get the information (either from your former spouse or his or her employer). The Court can also charge fines. On the other hand, if you get all of the information that you asked for before the hearing date, you can cancel the hearing—call the Court to do that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English
Be Aware

You can also adjourn (delay) the hearing if you need to. For example, if your former spouse is self-employed, and there are many documents you need to go through to see if it is complete. To ask for an adjournment, you would also call the Court.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

As noted above, a Notice to Disclose can also be filed at the same time as the paperwork for an Application about one or more other issues. If you are filing a Notice to Disclose together with the paperwork for an Application, the two matters can be combined into one hearing—the hearing will usually be scheduled after at least 30 days, so that your spouse has time to provide the financial information. If you receive the financial information from your spouse before the date of the combined hearing, you can simply let the judge know at the hearing and the hearing will go ahead on the same date as planned but without the need to disclose financial information.

To file a Notice to Disclose, use the form below. Be sure to check off the box for every kind of information that you need. If a box is not checked off, your spouse does not need to give you that information.

PDF Notice to Disclose / Application (Form FL-17 / CTS3835)
Government of Alberta
English
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Once you have served the Notice to Disclose on your spouse, you must file an Affidavit of Service to “prove” that you served it. To do that, you will need to complete the form below. If you are asking for only financial information, indicate that. If you are filing the Notice to Disclose along with the paperwork for another Application, list all of the documents served.

When you serve a Notice to Disclose, you must give your spouse the same financial information. To do so, use the “Responding to a Notice to Disclose” form, serve it on your spouse, and then file an Affidavit of Service with the Court to prove that you gave your spouse the information. The forms you will need are below.

PDF Court of Queen's Bench: Responding to a Notice to Disclose / Application
Government of Alberta
English
Instructions are included on the form.

Tip

If you are represented by a lawyer, and if you are combining a Notice to Disclose with a Statement of Claim, the lawyer may combine the Affidavits of Service. If you are a self-represented litigant, you will use both the “Affidavit of Personal Service” and the “Affidavit of Service for Statement of Claim” (as they are different and you must make sure that you properly show everything that you served).

Examples

If you only want financial information from your spouse:

You file a Notice to Disclose on its own. You serve it on your spouse on September 30. Your spouse has until October 30 to give you his or her financial information. The hearing is scheduled for October 31.

  • You must give your spouse your financial information by October 30 as well. You serve your financial information on your spouse (usually at the same time as you serve the Notice to Disclose on your spouse). You complete the Affidavit of Service and file it with the court, also before October 30.
  • If both sets of financial information are exchanged by October 30, you call the Court to cancel the hearing.
  • If both sets of financial information are not exchanged by October 30, you go to the hearing on October 31.

If you want financial information AND other issues dealt with in court:

You file a Notice to Disclose together with an Application for any other issues you want dealt with in court (see just below for information about Applications). You serve all of the paperwork on your spouse on September 30. Your spouse has until October 30 to give you their financial information. The combination hearing is scheduled for October 31.

  • You must give your spouse your financial information by October 30 as well. You serve your financial information on your spouse (usually at the same time as you serve the Notice to Disclose on your spouse). You complete the Affidavit of Service and file it with the court, also before October 30.
  • If both sets of financial information are exchanged by October 30, at the hearing you can let the judge know that the “financial disclosure” part of the hearing is no longer needed, but the other matters in your application will go ahead.
  • If both sets of financial information are not exchanged by October 30, you go to the hearing on October 31, prepared to talk about all of the issues, including financial disclosure.

Completing the paperwork for an Application

At the same time that you file your Statement of Claim, you might want to complete the paperwork for an Application related to your separation and/or divorce issues. For example, if you want a court hearing to ask that a particular piece of property be immediately dealt with (such as splitting the funds in a bank account or having to sell the matrimonial home).

If you and your spouse disagree about property and/or divorce-related topics, you may need to file one or more Applications to have the Court hear the issues and decide for you. The Court may make temporary (“interim”) decisions or final decisions based on your Application. Applications can only be used for topics brought up in your pleadings. If a topic was not included in the pleadings, it cannot be brought up in an Application.

You can file an application about property issues on its own, or combine it with the court hearing about a Notice to Disclose (see above), and/or applications for other divorce-related matters (such as child and support issues).

For information about the documents required for applications related to property issues, see the “Filing the paperwork for an Application” section below.

Family Violence

If you want to make an application for some kind of protective order at the same time, see the Protective Orders Information Page for your options.

For information about the documents required for other specific divorce-related applications, see the Information Pages about each topic.

Remember that, for parenting and support issues, married parents have a choice which law they use when they separate: they can use Canada’s Divorce Act, or Alberta’s Family Law Act. However, if you start your Matrimonial Property Act action at the same time as your divorce paperwork, you will now only be able to deal with your parenting and support issues under the Divorce Act. For more information about the choice between the Divorce Act and the Family Law Act, see the “Using the Divorce Act or the Family Law Act” section of the Ending a Married Relationship under the Divorce Act Information Page.

Remember

Just because you have started the court process does not mean that you will now have to resolve everything through court. At any time, you can still come to an agreement and turn that agreement into a Consent Order. For more information about how to do this, see the “Consent orders” section below.

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork

To file the paperwork, you must hand in the originals and multiple copies of everything. One copy of each document is for you and one is for any other parties. You file the documents at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The clerk will keep the original and stamp your copies.

If you are also filing a Notice to Disclose or an Application when you file your documents, a court clerk will help you pick a court date. When choosing a date, you will need to factor in the time that you will need to “serve” your spouse with the paperwork (next step), and you will need to give your spouse enough time to respond to everything.

Tip

The rules about how much time the other spouse has to “respond” are different depending on the paperwork. In other words, the Statement of Claim, Notice to Disclose, and Applications all have different timelines for responding. This can can get very confusing for everyone involved. If possible, you can consider having the first court hearing take place after the longest deadline has passed. Sometimes, however, this is not possible, if an urgent matter needs to be decided quickly. This can be arranged. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Serving” the paperwork

Once all of your paperwork is in order and properly signed, you will need to “serve” it on your spouse. “Service” is the legal term for delivering certain kinds of documents. This is to notify the other party that a hearing is taking place. This means you have to make sure that he or she gets the notice as soon as possible. This is also a very important step. For more information on how to serve documents, see the Understanding the Court Process Information Page.

In a divorce action, in order to serve a Statement of Claim, a picture of the defendant must be attached to the Affidavit of Service. Furthermore, in a divorce action, a Statement of Claim cannot be served by the plaintiff (this is part of the Rules of the Court of Queen’s Bench)—instead, you will have to get a third party or hire a “process server” to do it for you. You can find a process server by searching www.canada411.ca, or by looking in the yellow pages.

When you file a Statement of Claim, you do not have to serve it immediately (for example: if the other party is out of the country for a while), but be aware that a Statement of Claim must be served within one year of the date that it is filed, or it will expire. That said, there is the possibility to apply for one 3-month extension.

Tip

If you have to serve your spouse with the Statement of Claim outside of Alberta, you will first need to apply to the court for permission to do so. For more information, see the Family Breakdown and Out-of-Province Issues Information Page.

“Proving” that the paperwork was served

It is not enough for you to just serve the other party. You must also prove that you served the other party. To do so, the person who served the paperwork must swear an Affidavit of Service. This form must be completed by the person who completed the service, and filed before the court date. You will also need to bring a copy of this form with you to court.

PDF Affidavit of Service (CTS3882)
Government of Alberta
English
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Tip

If you are represented by a lawyer, and if you are combining a Statement of Claim with a Notice to Disclose, the lawyer may combine the Affidavits of Service. If you are a self-represented litigant, you will use both the “Affidavit of Personal Service” and the “Affidavit of Service for Statement of Claim” (as they are different and you must make sure that you properly show everything that you served).

Get ready for the response

Sometime before the end of the response time, your spouse will be serving you with his or her response. When this paperwork comes in, you will need to read it (especially if you have a court hearing booked). Depending on what it says, you may also need to respond.

Tip

If you do not get a response, you may be able to continue this process by completing the paperwork for an uncontested desk divorce (see the “Divorcing spouses: Dealing with matrimonial property in a desk divorce” section above).

If, in response to your Statement of Claim, your spouse files a “Counterclaim,” you will also need to file a “Statement of Defence to Counterclaim” (more information below). You have limited time to do this. If you do not file within the time limits, the pleadings will be considered closed (and you will no longer be allowed to file your Statement of Defence to Counterclaim). For information about responding to a Statement of Defence and a Counterclaim, review the “Divorcing spouses: The Plaintiff’s response options” section below.

Even if you did not include the paperwork for any Applications when you filed your Statement of Claim for Divorce and Division of Matrimonial Property, your spouse may do so in his or her response, and you may need to respond to those Applications:

  • For information about responding to an Application for exclusive possession, see the “Responding to an Application for exclusive possession under the Matrimonial Property Act” section above.
  • For information about responding to any other Applications related to property issues, see the “Responding to a matrimonial property Application (other than exclusive possession)” section below.
  • For information about the documents required for Applications related to other divorce-related issues, see the Information Pages about each topic.
    Custody & Access under the Divorce Act
    Child Support under the Divorce Act
    Spousal Support under the Divorce Act
Divorcing spouses: Responding to your spouse’s “Statement of Claim for Divorce and Division of Matrimonial Property” (information for the Defendant)

If you have been served with a “Statement of Claim for Divorce and Division of Matrimonial Property,” you can now respond. The person who filed the Statement of Claim is called the “Plaintiff”; you are called the “Defendant.”

The details that are in the Statement of Claim, as well as the details that will be in your response to the Statement of Claim, are called “the pleadings. It is important to know this term, as it may be used in court or on some paperwork.

Tip

Be very careful when completing the pleadings to ensure that all details are correct (including the names of the parties). It is not easy to correct or change pleadings after they are filed.

Read the Statement of Claim very carefully so that you understand what your spouse is asking for. The grounds for divorce are listed near the beginning. If you believe they are not true, you can contest them (which means to formally disagree)—see “Your response options” below. The “remedies” or “relief” that your spouse is asking for are listed throughout, divided by topic. If you disagree with any of these, you can contest them—see “Your response options” below.

Brief summaries of the contested divorce procedure can also be found in the following resources.

Audio/Web The Divorce Procedure
Calgary Legal Guidance
English

Audio/Web The Defendant in a Divorce Proceeding
Calgary Legal Guidance
English

Time to respond

You have a limited amount of time to respond to these documents, depending on your location at the time of service:

  • 20 days if you are served within Alberta;
  • 1 month if you are served outside of Alberta, but still in Canada;
  • 2 months if you are served outside of Canada.

If you do not respond within these time limits, your spouse may be able to continue with an “uncontested desk divorce,” and they can get what they have requested. You will not have your side heard, and you will not be able to make your own requests. Similarly, your spouse may try to get a summary judgment to finalize your matrimonial property issues (see the “Divorcing spouses: Dealing with matrimonial property in a desk divorce” section above). Also, unless you respond with a “Demand of Notice” form, you will not even be told of any further court proceedings.

You can ask the Court to extend these timelines if you apply to the court before the time expires. To ask for an extension, you must file an application to the court. To do so, you will need the following form.    

For general information about everything you need to do when filing paperwork for an application, see the following resource.

For more detailed information, you may also want to see the Information Pages about each topic.

Your response options

You have several choices when you are served with a Statement of Claim. You can:

Tip

If you complete any kind of Statement of Defence, it is very important to include all of the issues you want decided in court. If a topic is not included in the pleadings, it cannot be brought up in an Application.

Property from living together before marriage

Sometimes, spouses live together before marriage. The Matrimonial Property Act does not apply to property that they got before the marriage. If the spouses want that property to be divided after separating, then they would have to divide that property as if they were unmarried. For more information about that, see the Property Division for Unmarried Couples Information Page.

If you lived with your spouse before your marriage, the “Statement of Claim for Divorce and Matrimonial Property Division” that your spouse served you with may have a section for claims related to pre-marriage property. This is permitted. However, the rules of the MPA do not apply to that property. To understand what your response options are, see the Property Division for Unmarried Couples Information Page.

If you were also served with a Notice to Disclose

When you were served with the Statement of Claim you may also have been served with a Notice to Disclose/Application. This is the court document that requires you to give your spouse detailed financial information within one month.

A Notice to Disclose can be filed on its own, or along with the paperwork for an Application about one or more other issues.

When a Notice to Disclose is filed, there is a hearing date included. This can be a hearing to just deal with financial disclosure (if a Notice to Disclose was filed on its own), or it can be a “combination hearing” that includes other matters. If you were served with a Notice to Disclose along with other paperwork, you probably have a combination hearing. You should carefully read your documents so that you know about your deadlines and the hearing date(s).

If you were served with a Notice to Disclose, you must give your financial information to your spouse within one month. If you do not, on the hearing date the Court may make an order to get the information from you or your employer, and they may charge you fines. If you provide your financial information to your spouse within one month, the hearing:

  • may be cancelled (if it was a hearing only about financial disclosure), or
  • may go ahead with the other matters, but the issue of financial disclosure will be removed from the list of things that need to be heard.

To respond to a Notice to Disclose, use the following package of forms. Instructions are included on the form.

Once you have served the Responding to a Notice to Disclose on your spouse, you must file an Affidavit of Service to “prove” that you served it. To do that, you will need to complete the form below. If your spouse asked you for only financial information, and that is all that you are providing, indicate that. If you are responding to the Notice to Disclose along with a request for another Application, list all of the documents served.

Be Aware

Your spouse will now have to provide you with his or her financial information before the court hearing as well.

Examples

If your spouse only asked for financial information:

Your spouse filed a Notice to Disclose on its own. He or she served it on you on September 30. You have until October 30 to give your spouse your financial information. The hearing is scheduled for October 31.

  • You must give your spouse your financial information by October 30. You complete the Affidavit of Service and file it with the court, also before October 30.
  • Your spouse must also give you his or her financial information by October 30 (this may have been done at the time you were served with the Notice to Disclose).
  • If both sets of financial information are exchanged by October 30, the hearing may be cancelled by your spouse (to do this, he or she must call the Court).
  • If both sets of financial information are not exchanged by October 30, you go to the hearing on October 31.

If your spouse asked for financial information AND wants other issues dealt with in court:

Your spouse filed a Notice to Disclose together with an Application for other issues he or she wants to deal with in court. He or she served all of the paperwork on you on September 30. You have until October 30 to provide your spouse with your financial information. The “combination hearing” is scheduled for October 31.

  • You must give your spouse your financial information by October 30. You serve your financial information along with all the other paperwork on your spouse. You complete the Affidavit of Service and file it with the court, also before October 30.
  • Your spouse must also give you his or her financial information by October 30 (this may have been done at the time you were served with the Notice to Disclose).
  • If both sets of financial information are exchanged by October 30, you will both still go to the hearing to discuss the other issues.
  • If both sets of financial information are not exchanged by October 30, you go to the hearing on October 31, prepared to talk about all of the issues, including financial disclosure.
Be Aware

The possible penalties for not providing financial information within the month given in the Notice to Disclose can be quite large: sometimes hundreds of dollars per day, each day that you are late.

If you were also served with documents for an Application

When you were served with the Statement of Claim, you may also have been served with a Notice of an Application (also called a “Family Application”). This is a court document that your spouse uses to ask for a court hearing about another matter related to your divorce. This court hearing can occur on its own or it can be combined with the court hearing about a Notice to Disclose (see above).

You will need to pay special attention to the scheduled court date, because it may be taking place before you have even had the chance to complete your Statement of Defence. Read the documents carefully and be sure you know what is expected of you.

For information about responding to an Application for exclusive possession, see the “Responding to an Application for exclusive possession under the Matrimonial Property Act” section above.

For information about responding to any other Applications related to property issues, see the “Responding to a matrimonial property application (other than exclusive possession)” section below.

For information about the documents required to respond to other divorce-related applications, see the Information Pages about each topic.

Family Violence

If you want to apply for a protective order, see the Protective Orders Information Page.

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork

To file the paperwork, you must hand in the originals and multiple copies of everything. One copy of each document is for you and one is for any other parties. You file the documents at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The clerk will keep the original and stamp your copies.

“Serving” the paperwork

Once all of your paperwork is in order and properly signed, you will need to “serve” it on your spouse. “Service” is the legal term for delivering certain kinds of documents. This means you have to make sure that he or she gets the notice as soon as possible. This is also a very important step. If the Plaintiff has a lawyer, you can bring or send the copy to the lawyer's address.

For more information on how to serve documents, see the Understanding the Court Process Information Page.

Remember

The Plaintiff must receive one copy of each form that you filed, before your time limit is up.

“Proving” that the paperwork was served

It is not enough for you to just serve the other party. You must also prove that you served the other party. To do so, the person who served the paperwork must swear an Affidavit of Service. This form must be completed by the person who completed the service, and filed before the court date. You will also need to bring a copy of this form with you to court.

Get ready for the response

If you filed a Counterclaim, your spouse will now will be able to respond with his or her own “Statement of Defence to Counterclaim.” He or she will have the same amount of time to do so as you did to file your Statement of Defence.

Divorcing spouses: The Plaintiff’s response options

If there is no response to the Statement of Claim for Divorce and Division of Matrimonial Property

If there was no response to your Statement of Claim for Divorce and Division of Matrimonial Property, you may be able to start the process for an “uncontested” desk divorce for the divorce and the child- and support-related issues.

For more information about the process you need to follow for an uncontested desk divorce, see the “The Desk Divorce” section on the Process tab of the Ending a Married Relationship under the Divorce Act Information Page.

Be Aware

The paperwork for spouses with children is different than the paperwork for spouses without children. Be sure you choose the correct set of paperwork.

However, the paperwork involved in an uncontested divorce only deals with the divorce itself and child- and support-related issues. An uncontested desk divorce does not include documents related to property division (as that is not part of the Divorce Act).

For more information about dealing with your property claim, see the “Divorcing spouses: Dealing with matrimonial property in a desk divorce” section above.

Responding to the Defendant’s “Statement of Defence”

Completing a Statement of Defence to Counterclaim

If, in response to your Statement of Claim, your spouse filed a “Counterclaim,” you will also need to file a “Statement of Defence” to the Counterclaim—this now makes you the “Defendant by Counterclaim” in addition to being the “Plaintiff.”

You have limited time to file your Statement of Defence to Counterclaim. If you do not file within the time limits, the pleadings will be considered closed (and you will no longer be allowed to file it).

To file a Statement of Defence to Counterclaim, you must use the Statement of Defence form, but you will need to check off the box that says that you are the “Defendant by Counterclaim” (even though you are the Plaintiff in the Claim), and fill it out very carefully so that it is clear that this is a response to a counterclaim. If there are property issues to be addressed as part of the Defence to Counterclaim, be sure to include them. This can get quite confusing, so it is important to keep your paperwork well organized.

PDF Statement of Defence (Form FL-4 / CTS3826)
Government of Alberta
English
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When this form is complete, you may want to get it checked over by the court clerks. Then, you will need to file it with the Court of Queen’s Bench, and serve it on your spouse, just as you did with your Statement of Claim (see the “Starting a contested divorce” section above to refresh your memory).

If the Defendant applied to have response deadlines extended

Your spouse may have applied to the court to have more time to respond to your Statement of Claim. This request is just like any other court “application.” To respond to it, you will need this form:

For general information about everything you need to do when filing paperwork for an application, see the following resource.

Non-divorcing spouses: Starting a matrimonial property action without divorce paperwork (information for the Plaintiff)

To start a Matrimonial Property Act action, you do not also have to file for divorce, although you could if you wanted to (see the “Divorcing spouses” sections above). You can instead simply start an action about the matrimonial property. This can be helpful if, for example, you plan on never getting the actual “divorce”—you simply want to live separate and apart.

Remember

Just because you file a “Statement of Claim for Division of Matrimonial Property” does not mean that you will have to “go to court” to deal with your property issues. At any point, you can come to an agreement and turn that agreement into a Consent Order. For more information about how to do this, see the “Consent orders” section below.

The “pleadings”

The details that are in the Statement of Claim, as well as the details that are in the spouse’s response to the Statement of Claim (see below), are also called “the pleadings. It is important to know this term, as it may be used in court or on some paperwork.

“Pleadings” are the beginning stages of a lawsuit in which the parties formally submit their claims and defences. This is where each party gets to name all of the topics they want the court to decide about. The pleadings are like the chapters of a book—they give the outline of the book. In other words, they clearly state what issues need to be dealt with, and what questions need to be answered in order to resolve the dispute. Later, you will provide more detail for each chapter (through the evidence in your affidavits).

Tip

Be very careful when completing the pleadings to ensure that all details are correct (including the names of the parties). It is not easy to correct or change pleadings after they are filed.

For information on “closing” the pleadings and “amending” the pleadings, see the Ending a Married Relationship under the Divorce Act Information Page. Although that Information Page is about divorce, the rules about the pleadings are the same.

Completing the Statement of Claim for Division of Matrimonial Property

To complete the “Statement of Claim for Division of Matrimonial Property,” which is the document that starts the court action, you must use the following form.

The person who files the Statement of Claim is called the “Plaintiff.” It is very important that you, as the Plaintiff, include in your Statement of Claim all of the issues you want decided in court, because if a topic is not included in “the pleadings,” it cannot be brought up later.

Tip

When you file a Statement of Claim, you do not have to serve it immediately (for example: if the other party is out of the country for a while), but be aware that a Statement of Claim must be served within one year of the date that it is filed, or it will expire. That said, there is the possibility to apply for one 3-month extension.

Property from living together before marriage

Sometimes, spouses live together before marriage. The Matrimonial Property Act does not apply to property that they got before the marriage. If you are starting a Matrimonial Property Act action, you can include your pre-marriage common-law property claims in your “Statement of Claim for Division of Matrimonial Property,” so that everything can be heard at the same time. However, remember, the rules of the MPA do not apply to that property. To understand what your options are, and exactly how to make your claims, see the Property Division for Unmarried Couples Information Page.

Completing a Notice to Disclose

When you file your Statement of Claim, there are other sets of forms that you might want to file at the same time. The first is called a “Notice to Disclose/Application.” This is the court document that requires your spouse to provide you with detailed financial information within one month.

You may need this information in order to progress on your matrimonial property issues (for example: if your spouse has been refusing to provide you with the financial information that you need).

If the information is not provided within a month, there will be a court hearing. When you file a “Notice to Disclose/Application,” you are called the “Plaintiff” and your spouse is called the “Respondent.”

A Notice to Disclose can be filed on its own, or along with the paperwork for an Application about one or more other issues related to your Matrimonial Property Act action.

When you file a Notice to Disclose, you are also setting up a chambers hearing date. If your former spouse has not given you the financial information by the date of that hearing, the Court can take action to get the information (either from your former spouse or his or her employer). The Court can also charge fines. On the other hand, if you get all of the information that you asked for before the hearing date, you can cancel the hearing—call the Court to do that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English
Be Aware

You can also adjourn (delay) the hearing if you need to. For example, if your former spouse is self-employed, and there are many documents you need to go through to see if it is complete. To ask for an adjournment, you would also call the Court.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

As noted above, a Notice to Disclose can also be filed at the same time as the paperwork for an Application about one or more other issues. If you are filing a Notice to Disclose together with the paperwork for a first Application, the two matters can be combined into one hearing—the hearing will usually be scheduled after at least 30 days, so that your spouse has time to provide the financial information. If you receive the financial information from your spouse before the date of the combined hearing, you can simply let the judge know and the hearing will go ahead on the same date as planned but without the need to disclose financial information.

To file a Notice to Disclose, use the form below. Be sure to check off the box for every kind of information that you need. If a box is not checked off, your spouse does not need to give you that information.

PDF Notice to Disclose / Application (Form FL-17 / CTS3835)
Government of Alberta
English
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Once you have served the Notice to Disclose on your spouse, you must file an Affidavit of Service to “prove” that you served it. To do that, you will need to complete the form below. If you are asking for only financial information, indicate that. If you are filing the Notice to Disclose along with the paperwork for another Application, list all of the documents served.

When you serve a Notice to Disclose, you must give your spouse the same financial information. To do so, use the “Responding to a Notice to Disclose” form, serve it on your spouse, and then file an Affidavit of Service with the Court to prove that you gave your spouse the information. The forms you will need are below.

PDF Court of Queen's Bench: Responding to a Notice to Disclose / Application
Government of Alberta
English
Instructions are included on the form.

Tip

If you are represented by a lawyer, and if you are combining a Notice to Disclose with a Statement of Claim, the lawyer may combine the Affidavits of Service. If you are a self-represented litigant, you will use both the “Affidavit of Personal Service” and the “Affidavit of Service for Statement of Claim” (as they are different and you must make sure that you properly show everything that you served).

Examples

If you only want financial information from your spouse:

You file a Notice to Disclose on its own. You serve it on your spouse on September 30. Your spouse has until October 30 to give you his or her financial information. The hearing is scheduled for October 31.

  • You must give your spouse your financial information by October 30 as well. You serve your financial information on your spouse (usually at the same time as you serve the Notice to Disclose on your spouse). You complete the Affidavit of Service and file it with the court, also before October 30.
  • If both sets of financial information are exchanged by October 30, you call the Court to cancel the hearing.
  • If both sets of financial information are not exchanged by October 30, you go to the hearing on October 31.

If you want financial information AND other issues dealt with in court:

You file a Notice to Disclose together with an Application for any other issues you want dealt with in court—see the “Filing the paperwork for an Application” section below. You serve all of the paperwork on your spouse on September 30. Your spouse has until October 30 to give you their financial information. The combination hearing is scheduled for October 31.

  • You must give your spouse your financial information by October 30 as well. You serve your financial information on your spouse (usually at the same time as you serve the Notice to Disclose on your spouse). You complete the Affidavit of Service and file it with the court, also before October 30.
  • If both sets of financial information are exchanged by October 30, at the hearing you can let the judge know that the “financial disclosure” part of the hearing is no longer needed, but the other matters in your application will go ahead.
  • If both sets of financial information are not exchanged by October 30, you go to the hearing on October 31, prepared to talk about all of the issues, including financial disclosure.

Completing the paperwork for an Application

At the same time that you file your Statement of Claim, you might want to complete the paperwork for an Application related to your MPA action. For example, if you want a court hearing to ask for exclusive possession of the matrimonial home, or if a hearing is required to address a property issue that must be immediately dealt with (such as having to sell the matrimonial home).

If you and your spouse disagree about property-related topics, you may need to file one or more Applications to have the Court hear the issues and decide for you. The Court may make temporary (“interim”) decisions or final decisions based on your Application. Applications can only be used for topics brought up in your pleadings. If a topic was not included in the pleadings, it cannot be brought up in an Application.

An Application about matrimonial property can occur on its own, or it can be combined with the court hearing about a Notice to Disclose (see above), and/or it can be combined with an Application about another separation-related matter.

For support and parenting issues, married couples have a choice which law they use when they separate: the can use Canada’s Divorce Act, or Alberta’s Family Law Act. If you are starting your MPA action without also starting your divorce action, you will need to use the Family Law Act, as you can only make a Divorce Act application once an action for divorce has been started. For more information about the choice between the Divorce Act and the Family Law Act, see the “Using the Divorce Act or the Family Law Act” section of the Ending a Married Relationship under the Divorce Act Information Page.

In addition, remember that under the Family Law Act, you can bring your application in either the Provincial Court of Alberta (PC) or the Alberta Court of Queen’s Bench (QB). Since you are starting an action for matrimonial property, which must take place in QB, you may want to consider bringing all of your applications in QB.

Information about making an Application for exclusive possession can be found in the “Making an Application for exclusive possession under the Family Law Act” section above. This kind of application can also only take place in QB.

Information about making any other Application related to property issues can be found in the “Filing the paperwork for an Application (other than for exclusive possession)” section below.

For information about the documents required for other separation-related applications under the Family Law Act, see the Information Pages about each topic.

Family Violence

If you want to make an application for some kind of protective order at the same time, see the Protective Orders Information Page for your options.

Remember

Just because you have started the court process does not mean that you will now have to resolve everything through court. At any time, you can still come to an agreement and turn that agreement into a Consent Order. For more information about how to do this, see the “Consent orders” section below.

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork

To file the paperwork, you must hand in the originals and multiple copies of everything. One copy of each document is for you and one is for any other parties. You file the documents at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The clerk will keep the original and stamp your copies.

If you are also filing a Notice to Disclose or an Application when you file your documents, a court clerk will help you pick a court date. When choosing a date, you will need to factor in the time that you will need to “serve” your spouse with the paperwork (next step), and you will need to give your spouse enough time to respond to everything.

Tip

The rules about how much time your spouse has to respond are different depending on the paperwork. In other words, the Statement of Claim, Notice to Disclose, and Applications all have different timelines for responding. This can can get very confusing for everyone involved. If possible, you can consider having the first court hearing take place after the longest deadline has passed. Sometimes, however, this is not possible, as an urgent matter needs to be decided quickly. This can be arranged. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Serving” the paperwork

Once all of your paperwork is in order and properly signed, you will need to “serve” it on your spouse. “Service” is the legal term for delivering certain kinds of documents. This is to notify the other party that a hearing is taking place. This means you have to make sure that he or she gets the notice as soon as possible. This is also a very important step. For more information on how to serve documents, see the Understanding the Court Process Information Page.

When you file a Statement of Claim, you do not have to serve it immediately (for example: if the other party is out of the country for a while), but be aware that a Statement of Claim must be served within one year of the date that it is filed, or it will expire. That said, there is the possibility to apply for one 3-month extension.

Tip

If your spouse is outside of Canada and you have to serve him or her with the Statement of Claim outside of Alberta, you will first need to apply to the court for permission to do so. For more information, see the Family Breakdown and Out-of-Province Issues Information Page.

“Proving” that the paperwork was served

It is not enough for you to just serve the other party. You must also prove that you served the other party. To prove service of the Statement of Claim for Division of Matrimonial Property, the person who served the paperwork must swear the “Affidavit of Service for Statement of Claim for Divorce” form and file it with the court before the hearing date. You will also need to bring a copy of this form with you to court.

PDF Affidavit of Service (CTS3882)
Government of Alberta
English
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Tip

If you are represented by a lawyer, and if you are combining a Statement of Claim with a Notice to Disclose, the lawyer may combine the Affidavits of Service. If you are a self-represented litigant, you will use both the “Affidavit of Personal Service” and the “Affidavit of Service for Statement of Claim” (as they are different and you must make sure that you properly show everything that you served).

Get ready for the response

Sometime before the end of the response time, your spouse will be serving you with his or her response. When this paperwork comes in, you will need to read it (especially if you have a court hearing booked). Depending on what it says, you may also need to respond.

If, in response to your Statement of Claim for Division of Matrimonial Property, your spouse files a “Counterclaim,” you will also need to file a “Statement of Defence to Counterclaim” (more information below). You have limited time to do this. If you do not file within the time limits, the pleadings will be considered closed (and you will no longer be allowed to file your Statement of Defence to Counterclaim). For information about responding to a Statement of Defence and a Counterclaim, review the “Non-divorcing spouses: The Plaintiff’s response options” section below.

Even if you did not include the paperwork for any Applications when you filed your Statement of Claim for Division of Matrimonial Property, your spouse may do so in his or her response, and you may need to respond to those Applications.

  • For information about responding to an Application for exclusive possession, see the “Responding to an Application for exclusive possession under the Family Law Act” section above.
  • For information about responding to any other Application related to property issues, see the “Responding to a matrimonial property Application (other than exclusive possession)” section below.
  • For information about the documents required for Applications related to other separation-related issues, see the Information Pages about each topic.
    Guardianship & Parenting under the Family Law Act     
    Child Support under the Family Law Act      
    Partner Support under the Family Law Act
Non-divorcing spouses: Responding to your spouse’s “Statement of Claim for Division of Matrimonial Property” (information for the Defendant)

If you have been served with a “Statement of Claim for Division of Matrimonial Property,” you can now respond. The person who filed the Statement of Claim is called the “Plaintiff”; you are called the “Defendant.”

The details that are in the Statement of Claim, as well as the details that are in the spouse’s response to the Statement of Claim, are also called “the pleadings. It is important to know this term, as it may be used in court or on some paperwork.

Tip

Be very careful when completing the pleadings to ensure that all details are correct (including the names of the parties). It is not easy to correct or change pleadings after they are filed.

Read the Statement of Claim very carefully so that you understand what your spouse is asking for. The “remedies” or “relief” that your spouse is asking for are listed throughout, divided by topic. If you disagree with any of these, you can contest them (see “Your response options” below).

Time to respond

You have a limited amount of time to respond to these documents, depending on your location at the time of service:

  • 20 days if you are served within Alberta;
  • 1 month if you are served outside of Alberta, but still in Canada;
  • 2 months if you are served outside of Canada.

If you do not respond within these time limits, you will not have your side heard, and you will not be able to make any requests of your own. Also, unless you respond with a “Demand of Notice” form, you will not even be told of any further court proceedings.

You can ask the Court to extend these timelines if you apply to the court before the time expires. To ask for an extension, you must file an application to the court. To do so, you will need the following form.

For general information about everything you need to do when filing paperwork for an application, see the following resource.

For more detailed information, you may also want to see the Information Pages about each topic.

Your response options

You have several choices when you are served with a Statement of Claim. You can:

Tip

If you file a Statement of Defence, it is very important to include all of the issues you want decided in court: if a topic is not included in the pleadings, it cannot be brought up in an Application later on. If you do not ask now, you likely won’t be permitted to ask later.

Property from living together before marriage

Sometimes, spouses live together before marriage. The Matrimonial Property Act does not apply to property that they got before the marriage.

If you lived with your spouse before your marriage, the “Statement of Claim for Division of Matrimonial Property” that you were served with may have a section for claims related to such pre-marriage property. This is permitted. However, the rules of the MPA do not apply to that property. To understand what your response options are, see the Property Division for Unmarried Couples Information Page.

If you were also served with a Notice to Disclose

When you were served with the Statement of Claim you may also have been served with a Notice to Disclose/Application. This is the court document that requires you to give your spouse detailed financial information within one month.

A Notice to Disclose can be filed on its own, or along with the paperwork for an Application about one or more other issues.

When a Notice to Disclose is filed, there is a hearing date included. This can be a hearing to just deal with financial disclosure (if a Notice to Disclose was filed on its own), or it can be a “combination hearing” that includes other matters. If you were served with a Notice to Disclose along with other paperwork, you probably have a combination hearing. You should carefully read your documents so that you know about your deadlines and the hearing date(s).

If you were served with a Notice to Disclose, you must give your financial information to your spouse within one month. If you do not, on the hearing date the Court may make an order to get the information from you or your employer, and they may charge you fines.

If you provide your financial information to your spouse within one month, the hearing:

  • may be cancelled (if it was a hearing only about financial disclosure), or
  • may go ahead with the other matters, but the issue of financial disclosure will be removed from the list of things that need to be heard.

To respond to a Notice to Disclose, use the following package of forms. Instructions are included on the form.

Once you have served the Responding to a Notice to Disclose on your spouse, you must file an Affidavit of Service to “prove” that you served it. To do that, you will need to complete the form below. If your spouse asked you for only financial information, and that is all that you are providing, indicate that. If you are responding to the Notice to Disclose along with a request for another Application, list all of the documents served.

Be Aware

Your spouse will now have to provide you with his or her financial information before the court hearing as well.

Examples

If your spouse only asked for financial information:

Your spouse filed a Notice to Disclose on its own. He or she served it on you on September 30. You have until October 30 to give your spouse your financial information. The hearing is scheduled for October 31.

  • You must give your spouse your financial information by October 30. You complete the Affidavit of Service and file it with the court, also before October 30.
  • Your spouse must also give you his or her financial information by October 30 (this may have been done at the time you were served with the Notice to Disclose).
  • If both sets of financial information are exchanged by October 30, the hearing may be cancelled by your spouse (to do this, he or she must call the Court).
  • If both sets of financial information are not exchanged by October 30, you go to the hearing on October 31.

If your spouse asked for financial information AND wants other issues dealt with in court:

Your spouse filed a Notice to Disclose together with an Application for other issues he or she wants to deal with in court. He or she served all of the paperwork on you on September 30. You have until October 30 to provide your spouse with your financial information. The “combination hearing” is scheduled for October 31.

  • You must give your spouse your financial information by October 30. You serve your financial information along with all the other paperwork on your spouse. You complete the Affidavit of Service and file it with the court, also before October 30.
  • Your spouse must also give you his or her financial information by October 30 (this may have been done at the time you were served with the Notice to Disclose).
  • If both sets of financial information are exchanged by October 30, you will both still go to the hearing to discuss the other issues.
  • If both sets of financial information are not exchanged by October 30, you go to the hearing on October 31, prepared to talk about all of the issues, including financial disclosure.
Be Aware

The possible penalties for not providing financial information within the month given in the Notice to Disclose can be quite large: sometimes hundreds of dollars per day, each day that you are late.

If you were also served with documents for an Application

When you were served with the Statement of Claim, you may also have been served with a Notice of an Application (also called a “Family Application”). This is a court document that your spouse uses to ask for a court hearing about another matter related to your separation. This court hearing can occur on its own or it can be combined with the court hearing about a Notice to Disclose (see above).

You will need to pay special attention to the scheduled court date, because it may be taking place before you have even had the chance to complete your Statement of Defence. Read the documents carefully and be sure you know what is expected of you.

For information about responding to an Application for exclusive possession, see the “Responding to an Application for exclusive possession under the Family Law Act” section above.

For information about responding to any other Applications related to property issues, see the “Responding to a matrimonial property application (other than exclusive possession)” section below.

For information about the documents required to respond to other separation-related applications, see the Information Pages about each topic.

Family Violence

If you want to apply for a protective order, see the Protective Orders Information Page.

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork

To file the paperwork, you must hand in the originals and multiple copies of everything. One copy of each document is for you and one is for any other parties. You file the documents at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The clerk will keep the original and stamp your copies.

“Serving” the paperwork

Once all of your paperwork is in order and properly signed, you will need to “serve” it on your spouse. “Service” is the legal term for delivering certain kinds of documents. This means you have to make sure that he or she gets the notice as soon as possible. This is also a very important step. If the Plaintiff has a lawyer, you can bring or send the copy to the lawyer's address.

For more information on how to serve documents, see the Understanding the Court Process Information Page.

Remember

The Plaintiff must receive one copy of each form that you filed, before your time limit is up.

“Proving” that the paperwork was served

It is not enough for you to just serve the other party. You must also prove that you served the other party. To do so, the person who served the paperwork must swear an Affidavit of Service. This form must be completed by the person who completed the service, and filed before the court date. You will also need to bring a copy of this form with you to court.

Get ready for the response

If you filed a Counterclaim, your spouse will now will able to respond with his or her own “Statement of Defence to Counterclaim.” He or she will have the same amount of time to do so as you did to file your Statement of Defence.

Non-divorcing spouses: The Plaintiff’s response options

If there is no response to the Statement of Claim for Division of Matrimonial Property

If you do not receive a response to your Statement of Claim for Division of Matrimonial Property, you can note your spouse in default. A Noting in Default form explains how the Defendant did not respond to your Statement of Claim. The form you need is below.

PDF Noting in Default (Form 14 / CTS3784)
Government of Alberta
English
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Once you have filed the Noting in Default form, you can bring an application for “summary judgment” without notice to your spouse.

A summary judgment is a final court decision that resolves an action without having a trial. To ask for a summary judgment, the applicant must show that there is no genuine claim or defence requiring a trial (for example: if the other party never responded, there may not be a defence at all).

An application for summary judgment can only be heard in special chambers (not morning chambers). For more information about making applications in special chambers, see the “Going to and being in chambers” section below.

If the summary judgment is granted, the court may give what the applicant asked for, or it may not. Or, the Court may not grant a summary judgement at all. For example: the judge may decide that more information is needed and may require a summary trial. For information about summary trials, see the Understanding the Court Process Information Page.

Summary judgments and summary trials are a complex area of law. Consider consulting a lawyer for help. For more information, see the Working with a Lawyer Information Page.

Responding to the Defendant’s “Statement of Defence”

Completing a Statement of Defence to Counterclaim

If, in response to your Statement of Claim, your spouse files a “Counterclaim,” you will also need to file a “Statement of Defence” to the Counterclaim—this now makes you the “Defendant by Counterclaim” in addition to being the “Plaintiff.”

You have limited time to file your Statement of Defence to Counterclaim. If you do not file within the time limits, the pleadings will be considered closed (and you will no longer be allowed to file it).

To file a Statement of Defence to Counterclaim, you must use the Statement of Defence form, but you will need to check off the box that says that you are the “Defendant by Counterclaim” (even though you are the Plaintiff in the Claim), and fill it out very carefully so that it is clear that this is a response to a counterclaim. If there are property issues to be addressed as part of the defence to counterclaim, be sure to include them. This can get quite confusing, so it is important to keep your paperwork well organized.

PDF Statement of Defence (Form FL-4 / CTS3826)
Government of Alberta
English
This link only opens in Internet Explorer. Learn how you can view this form in Chrome and Firefox.

When this form is complete, you may want to get it checked over by the court clerks. Then, you will need to file it with the Court of Queen’s Bench, and serve it on your spouse, just as you did with your Statement of Claim.

If the Defendant applied to have response deadlines extended

Your spouse may have applied to the court to have more time to respond to your Statement of Claim. This request is just like any other court “application.” To respond to it, you will need the following form.

For general information about everything you need to do when filing paperwork for an application, see the following instruction kit.

Filing the paperwork for an Application (other than for exclusive possession)

What are “Applications”?

“Applications” are smaller, individual parts of the court action, where one of the parties asks something of the Court. It is a court hearing used to temporarily solve some matters before coming to a final agreement, or before the case is permanently decided at a trial.

For more general information about applications, see the “Before you go to court: Get to know the court system” section above.

Be Aware

In order to make an Application for an issue related to property (other than exclusive possession), you will need to have started a Matrimonial Property Act action.

You can file your first Application at the same time as you file your “Statement of Claim for Divorce and Division of Matrimonial Property” or “Statement of Claim for Division of Matrimonial Property.” If your Statement of Claim has already been filed, you can file an Application on its own.

You can also file an Application about matrimonial property at the same time as you file Applications about other separation and divorce-related topics. If you do so, there are 2 things to keep in mind:

  1. Remember that child- and support-related topics can be dealt with in Applications either under the Divorce Act or the Family Law Act. If you choose the Family Law Act, you can have your Application heard in either the Court of Queen’s Bench (QB) or the Provincial Court of Alberta (PC). However, matrimonial property applications can only be heard in QB. Therefore, if you are dealing with child- and support-related issues in PC, you will not be able to combine those applications with a matrimonial property application. For more information about this choice, see the “Using the Divorce Act or the Family Law Act” section of the Ending a Married Relationship Information Page.
  2. If you want combine a matrimonial property application with a custody or access application under the Divorce Act, you must already have a divorce file started in the Court of Queen’s Bench. In other words, there has to have been a “Statement of Claim for Divorce” or “Statement of Claim for Divorce and Division of Matrimonial Property” filed.

The information in this section is for the spouse who fills out the “Application” paperwork to ask for something. This person is called the “Applicant.". The other spouse will have different paperwork to fill out (see the “Responding to a matrimonial property Application (other than exclusive possession)” section below).

All of the links below take you to an electronic version of the forms (where available). You can also get paper copies of all of these forms at Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English
Remember

Just because you have started the court process does not mean that you will now have to resolve everything through court. At any time, you can still come to an agreement and turn that agreement into a Consent Order. For more information about how to do this, see the “Consent orders” section below.

Is/was there domestic violence?

If there is/was domestic violence in your family, you can bring it up in your court documents. This can be particularly important if the violence is the reason you are making certain requests.

For information about how the presence of domestic violence can affect your paperwork, see the following resource.

Presentation Overview of Family Law
YWCA Canada
English

For more information, see the Family Violence and the Legal Process Information Page.

If you want to apply for a protective order to help keep you safe, see the Protective Orders Information Page. The choices you make about protective orders may affect the process you need to follow with your other family law matters.

Filing the Application at the same time as the Statement of Claim

When you file your first Application, you may also be filing the Statement of Claim that starts the divorce and/or matrimonial property action. If that is the case, pay close attention to the date chosen for the court hearing to make sure your spouse will have enough time to: 1) respond to your Application documents, and 2) complete a Statement of Defence.

Completing a “Notice to Disclose / Application”

When you are filing a property Application, you may also want or need to file a “Notice to Disclose.”

A Notice to Disclose requires your spouse to provide you with detailed financial information within one month. You can also just ask your spouse for his or her financial information, but if he or she is not providing it, using a Notice to Disclose makes sure that you will get it.

A Notice to Disclose can be filed on its own, or along with the paperwork for an Application about one or more other issues related to your divorce and/or matrimonial property action.

Be Aware

Notices to Disclose cannot be filed more than once per year.

When you file a Notice to Disclose, you are also setting up a chambers hearing date. If your former spouse has not given you the financial information by the date of that hearing, the Court can take action to get the information (either from your former spouse or his or her employer). The Court can also charge fines. On the other hand, if you get all of the information that you asked for before the hearing date, you can cancel the hearing—call the Court to do that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English
Be Aware

You can also adjourn (delay) the hearing if you need to. For example, if your former spouse is self-employed, and there are many documents you need to go through to see if it is complete. To ask for an adjournment, you would also call the Court.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

However, as noted above, a Notice to Disclose can also be filed at the same time as the paperwork for an Application about one or more other separation or divorce-related issues. If you are filing a Notice to Disclose together with the paperwork for an Application, the two matters can be combined into one hearing—the hearing will usually be scheduled after at least 30 days, so that your spouse has time to provide the financial information. If you receive the financial information from your spouse before the date of the combined hearing, you can simply let the judge know at the hearing and the hearing will go ahead on the same date as planned but without the need to disclose financial information.

To file a Notice to Disclose, use the form below. Be sure to check off the box for every kind of information that you need. If a box is not checked off, your spouse does not need to give you that information.

PDF Notice to Disclose / Application (Form FL-17 / CTS3835)
Government of Alberta
English
This link only opens in Internet Explorer. Learn how you can view this form in Chrome and Firefox. Instructions are included on the form.

Once you have served the Notice to Disclose on your spouse, you must file an Affidavit of Service to “prove” that you served it. To do that, you will need to complete the form below. If you are asking for only financial information, indicate that. If you are filing the Notice to Disclose along with the paperwork for another Application, list all of the documents served.

When you serve a Notice to Disclose, you must give your spouse the same financial information. To do so, use the “Responding to a Notice to Disclose” form, serve it on your spouse, and then file an Affidavit of Service with the Court to prove that you gave your spouse the information. The forms you will need are below.

PDF Court of Queen's Bench: Responding to a Notice to Disclose / Application
Government of Alberta
English
Instructions are included on the form.

Examples

If you only want financial information from your spouse:

You file a Notice to Disclose on its own. You serve it on your spouse on September 30. Your spouse has until October 30 to give you his or her financial information. The hearing is scheduled for October 31.

  • You must give your spouse your financial information by October 30 as well. You serve your financial information on your spouse (usually at the same time as you serve the Notice to Disclose on your spouse). You complete the Affidavit of Service and file it with the court, also before October 30.
  • If both sets of financial information are exchanged by October 30, you call the Court to cancel the hearing.
  • If both sets of financial information are not exchanged by October 30, you go to the hearing on October 31.

If you want financial information AND other issues dealt with in court:

You file a Notice to Disclose together with an Application for any other issues you want dealt with in court. You serve all of the paperwork on your spouse on September 30. Your spouse has until October 30 to give you their financial information. The combination hearing is scheduled for October 31.

  • You must give your spouse your financial information by October 30 as well. You serve your financial information on your spouse (usually at the same time as you serve the Notice to Disclose on your spouse). You complete the Affidavit of Service and file it with the court, also before October 30.
  • If both sets of financial information are exchanged by October 30, at the hearing you can let the judge know that the “financial disclosure” part of the hearing is no longer needed, but the other matters in your application will go ahead.
  • If both sets of financial information are not exchanged by October 30, you go to the hearing on October 31, prepared to talk about all of the issues, including financial disclosure.

Completing property-related Application forms

In order to make an Application about matrimonial property, you will need 2 forms:

  1. A Family Application form, which you use to tell the court what you are asking for.
    Audio/Web 
    This link only opens in Internet Explorer. Learn how you can view this form in Chrome and Firefox.
  2. An Affidavit, where you include the facts that the court will need to see. If there are any documents that you want the judge to see, you must write about them in the Affidavit, and attach the documents to your paperwork. For more in-depth information about how to complete an Affidavit (including what you should not put in it), see the Understanding the Court Process Information Page:
Be Aware

There are very detailed and strict rules about the length of affidavits and the kind of evidence that can go in them. These rules are not just for lawyers—you must follow them even if you are representing yourself. If you want to ask for an exception to these rules, you will need ask permission of the court. There is a very specific procedure for doing that. For more information, see the following resource and call your Court of Queen’s Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

If you are combining your matrimonial property request with another kind of Application under the Divorce Act, you will need other forms as well. For information about that, see the Information Pages about each topic. Do not fill out these forms without first learning about the related law:

If you are combining your matrimonial property request with another kind of Application under the Family Law Act, you will need other forms as well. For information about that, see the Information Pages about each topic. Do not fill out these forms without first learning about the related law:

The Court of Queen’s Bench has also created a general information kit to help self-represented litigants with the process of bringing an Application to court. See the following resource.

Be Aware

If you are represented by a lawyer, the forms may have different names and will look different than the self-help forms provided by the Court. This is normal.

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork and choosing a court date

To file the paperwork, you must hand in the originals and multiple copies of everything. One copy of each document is for you and one is for any other parties. You file the documents at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

At the courthouse, and with the help of a court clerk, you will be able to pick a court date. When choosing a date, you will need to factor in the time that you will need to “serve” your spouse with the paperwork (next step). You will also need to give your spouse enough time to respond to your application.

Your matter will be scheduled in “chambers.” This is where one judge sits in an open courtroom (meaning anyone can come in) and hears a list of different matters by different people. Yours is just one case on the list.

Depending on your location and the amount of time your matter is expected to take, you may have to appear in regular chambers (also called “morning” chambers) or in special chambers (also called “afternoon” chambers).

  • Regular chambers is for matters where each party can present their side in 10 minutes or less (for a total of 20 minutes).
  • Special chambers is for matters that require more than 20 minutes in total.

The court clerk will help you figure out what time you are to appear.

Be Aware

The rules for regular chambers are very different than the rules for special chambers. For example: in special chambers, the parties must send in a specific document called a “confirming letter.” Also, there are very detailed and strict rules about scheduling, paperwork, and deadlines. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource.

After you have been given a court date, write down the court date on the first page of all of the copies of your application. The clerk will stamp and keep the original copies of all of your documents and will return the stamped copies to you. All documents must have a court stamp on them. These copies are what you will need for the next step.

“Serving” the paperwork

Once all of your paperwork is in order and properly signed and filed, you will need to “serve” it on the other party. “Service” is the legal term for delivering certain kinds of documents. This is to notify the other party that a hearing is taking place. This means you have to make sure that he or she gets the notice as soon as possible. This is also a very important step, because if the paperwork is not properly served, the judge might not hear your matter. For more information on how to serve documents, see the Understanding the Court Process Information Page.

However, there are certain very limited situations in which the other party does not need to be notified of the hearing. This is called an “ex parte” hearing. For more information on these situations, see the Understanding the Court Process Information Page.

“Proving” that the paperwork was served

It is not enough for you to just serve the other party. You must also prove that you served the other party. To do so, the person who served the paperwork must swear an Affidavit of Service. This form must be completed by the person who completed the service, and filed before the court date. You will also need to bring a copy of this form with you to court.

Get ready for the response

Before the court date, your spouse will be serving you with his or her response. You will need to read his or her paperwork to make sure that you are ready for your court date.

For the Matrimonial Property Act application, there are 2 ways in which your spouse can respond.

  1. He or she can file an Affidavit in response to your Application. In his or her Affidavit, your spouse can state whether he or she agrees or disagrees with what you asked for. However, in an Affidavit, he or she is not allowed to ask for anything of their own. (For more information about the rules around Affidavits, see the Understanding the Court Process Information Page). If this is how your spouse responded to your Application, see the next section for options about how you can respond to this Affidavit.
  2. He or she can file an Affidavit in response to your application, and he or she can file an “Application” of his or her own, in order to “ask for” something of their own (this also called a “cross-application”). This starts another Application, and an entirely new round of responses. If this is how your spouse responded to your Application, see the next section for options about how you can respond to this Affidavit and Cross-application.

Do you need to respond to your spouse’s Response?

If your spouse responded with only an Affidavit

If your spouse only filed an Affidavit, you may be able to file a Supplemental Affidavit. You can only use a Supplemental Affidavit to change some factual information. This could be either something that has changed since you filed your first Affidavit, or to respond to some updated factual information provided by your spouse. In your Supplemental Affidavit, you should explain how the information is new and why it was not available when you first completed your forms. You cannot use Supplemental Affidavits to repeat the same facts or to make arguments. For more information about the rules around Affidavits, see the Understanding the Court Process Information Page.

If you were given a court hearing in regular chambers (sometimes called “morning chambers”), there may not be enough time to file a Supplemental Affidavit. For that reason, Supplemental Affidavits are less common in morning chambers. Supplemental Affidavits are more common in special chambers (sometimes called “afternoon chambers”). No matter which kind of chambers hearing you have, if you really need to file a Supplemental Affidavit, you may need to ask for an “adjournment” (delaying the hearing until a later date). For information about how to do that, see the “Going to and being in chambers” section below.

Be Aware

There are very detailed and strict rules about the number and length of affidavits you are allowed in chambers. You will likely have to ask for the Court’s permission before filing a Supplemental Affidavit. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen's Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The form for a Supplemental Affidavit is below.

PDF Affidavit - Supplemental
Government of Alberta
English
Remember

You will need to file and serve this Supplemental Affidavit as well, so give yourself enough time. Be aware of the general rule that all documents must be filed with the Court within a “reasonable time” before the date of the court hearing. Exact timelines can vary by judicial centre. Although a judge may allow an exception to this rule, he or she is not required to do so. Also, you risk that your matter will be adjourned (delayed until a later date) because you did not give your spouse enough time to review your documents.

If your spouse responded with an Affidavit and a Cross-Application

If your spouse responded with both an Affidavit and an Application of their own, you now become:

  • the Applicant in your own Application; and
  • the Respondent in your spouse’s Application.

When there are cross-applications, it gets very confusing as to which documents go with which Applications, and whose turn it is to do what. You can do the following things to make it easier:

  • keep all of the paperwork together;
  • keep things well organized (for example: in a binder);
  • mark deadlines and court hearings on a calendar; and
  • maybe even draw a little chart for yourself.

As a result, it is now your turn to file a “response” to the new application (see the “Responding to a matrimonial property Application” section below). Your spouse will then be able to file the Supplemental Affidavit to your response, if he or she wants to (as described above).

Be Aware

There are very detailed and strict rules about cross-applications. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen's Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

If you are combining your matrimonial property request with another kind of Application under the Divorce Act, you will have to follow the processes related to those topics. For information about that, see the Information Pages about each topic.

If you are combining your matrimonial property request with another kind of Application under the Family Law Act, you will have to follow the processes related to those topics. For information about that, see the Information Pages about each topic.

Responding to a matrimonial property Application (other than exclusive possession)

The information in this section is for the person who responds to an “Application” that asks for something under the Matrimonial Property Act. This person is called the “Respondent.”

You have been served with forms telling you that there has been an Application made under the Matrimonial Property Act. In these forms, you have been notified of the date of the court hearing. If you agree with everything that is in those documents, you do not have to do anything. If you disagree with anything that is in those documents, you will need to complete a response.

When you were served with notice of the Application, you may also have been served with a “Statement of Claim for Division of Matrimonial Property” or a “Statement of Claim for Divorce and Division of Matrimonial Property.” You can respond to both the Statement of Claim and the Application, but be aware that the response times will probably be different. For more information about how to respond to a Statement of Claim, see the various sections about responding above. For more information about how to respond to the Application, continue reading this section.

All of the links below take you to an electronic version of the forms (where available). You can also get paper copies of all of these forms at Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English
Remember

Just because you have started the court process does not mean that you will now have to resolve everything through court. At any time, you can still come to an agreement and turn that agreement into a Consent Order. For more information about how to do this, see the “Consent orders” section below.

Time limits

Once you have been served with the documents for an Application, you have to complete your response within a “reasonable time” before the Application is scheduled to be heard. What is considered “reasonable” is different depending on your judicial centre. If you have any questions, contact the court in that area.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

If for any reason you cannot file within the time limits, you may still be able to file the documents late and appear at the court hearing. However, you risk that your spouse will ask for, and that the judge will grant, an “adjournment” (a delay of your court date) as he or she did not have enough time to prepare for the hearing. Or the judge may give your spouse what he or she has asked for without taking your documents into consideration because they were not filed in time.

Be Aware

For matters in special chambers, there are additional rules about response times and deadlines. These rules are very specific and strict, and they are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource.

Is/was there domestic violence?

If there is/was domestic violence in your family, you can bring it up in your court documents. This can be particularly important if the violence is the reason you are making certain requests.

For information about how the presence of domestic violence can affect your paperwork, see the following resource.

Presentation Overview of Family Law
YWCA Canada
English

For more information, see the Family Violence and the Legal Process Information Page.

If you want to apply for a protective order to help keep you safe, see the Protective Orders Information Page. The choices you make about protective orders may affect the process you need to follow with your other family law matters.

Is the Application hearing set to take place before the time limit for filing a Statement of Defence?

When you were served with the documents for a first Application, you may have also been served with the “Statement of Claim” that started the divorce and/or a matrimonial property action. If that is the case, you will need to pay special attention to the scheduled court date, because it may be taking place before you have even had the chance to complete your Statement of Defence. Read the documents carefully and be sure you know what is expected of you.

For more information about how to respond to a Statement of Claim, see the various sections about responding above.

Responding to a “Notice to Disclose / Application”

When you were served with your spouse’s Application, you may also have been served with a “Notice to Disclose.” A Notice to Disclose is the court document that requires you to provide your spouse with detailed financial information within one month. A Notice to Disclose can be filed on its own, or along with the paperwork for an Application about one or more other issues.

When a Notice to Disclose is filed, there is a hearing date included. This can be a hearing to just deal with financial disclosure (if a Notice to Disclose was filed on its own), or it can be a “combination hearing” that includes other matters. If you were served with a Notice to Disclose along with other paperwork, you probably have a combination hearing. You should carefully read your documents so that you know about your deadlines and the hearing date(s).

If you were served with a Notice to Disclose, you must give your financial information to your spouse within one month. If you do not, on the hearing date the Court may make an order to get the information from you or your employer, and they may charge you fines. If you provide your financial information to your spouse within one month, the hearing:

  • may be cancelled (if it was a hearing only about financial disclosure), or
  • may go ahead with the other matters, but the issue of financial disclosure will be removed from the list of things that need to be heard.

To respond to a Notice to Disclose, use the following package of forms.

PDF Court of Queen's Bench: Responding to a Notice to Disclose / Application
Government of Alberta
English
Instructions are included on the form.

Once you have served the Responding to a Notice to Disclose on your spouse, you must file an Affidavit of Service to “prove” that you served it. To do that, you will need to complete the form below. If your spouse asked for only financial information, and that is all that you are providing, indicate that. If you are responding to the Notice to Disclose along with a request for another Application, list all of the documents served.

Be Aware

Your spouse will now have to provide you with his or her financial information before the court hearing as well.

Examples

If your former spouse only asked for financial information:

Your spouse filed a Notice to Disclose on its own. He or she served it on you on September 30. You have until October 30 to give your spouse your financial information. The hearing is scheduled for October 31.

  • You must give your spouse your financial information by October 30. You complete the Affidavit of Service and file it with the court, also before October 30.
  • Your spouse must also give you his or her financial information by October 30 (this may have been done at the time you were served with the Notice to Disclose).
  • If both sets of financial information are exchanged by October 30, the hearing may be cancelled by your former spouse (to do this, he or she must call the Court).
  • If both sets of financial information are not exchanged by October 30, you go to the hearing on October 31.

If your former spouse asked for financial information AND wants other issues dealt with in court:

Your spouse filed a Notice to Disclose together with an Application for other issues he or she wants to deal with in court. He or she served all of the paperwork on you on September 30. You have until October 30 to provide your spouse with your financial information. The “combination hearing” is scheduled for October 31.

  • You must give your spouse your financial information by October 30. You serve your financial information along with all the other paperwork on your spouse. You complete the Affidavit of Service and file it with the court, also before October 30.
  • Your spouse must also give you his or her financial information by October 30 (this may have been done at the time you were served with the Notice to Disclose).
  • If both sets of financial information are exchanged by October 30, you will both still go to the hearing to discuss the other issues.
  • If both sets of financial information are not exchanged by October 30, you go to the hearing on October 31, prepared to talk about all of the issues, including financial disclosure.
Be Aware

The possible penalties for not providing financial information within the month given in the Notice to Disclose can be quite large: sometimes hundreds of dollars per day, each day that you are late.

Completing a response to the Application

When responding to an Application (other than one that includes a Notice to Disclose), you have 3 choices:

  1. Do not file any forms. If you agree with what the Applicant is asking for, you do not have to fill out any documents.
  2. File only an Affidavit. You do this if you disagree with what the Applicant wants, but you are not asking for anything specific of your own. Or, do this if it is not clear what the Applicant is asking for (for example: if your former spouse asks for child support, but does not provide a specific amount).
  3. File an Affidavit and Application of your own. This is called a “Cross-application.” You do this if you disagree with what the Applicant wants, and you are asking for something of your own.

Filing only an Affidavit

If you choose to respond to your spouse’s matrimonial property Application with only an Affidavit, you will need the following form.

Be Aware

There are very detailed and strict rules about the length of affidavits and the kind of evidence that can go in them. These rules are not just for lawyers—you must follow them even if you are representing yourself. If you want to ask for an exception to these rules, you will need ask permission of the court. There is a very specific procedure for doing that). For more information, see the following resource and call your Court of Queen’s Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Filing an Affidavit and a Cross-Application

If you are responding to your spouse’s Application by filing a cross-application of your own, you will need to review the “Filing the paperwork for an Application (other than exclusive possession)” section above.

A few things you should know:

  • In your Affidavit, you can include facts that respond to the documents completed by your spouse and the requests you are making in your own Application.
  • Usually it makes sense to choose the same hearing date as the date listed on your spouse’s Application (if that is possible), so that both Applications can be heard at the same time.
  • There are now 2 applications with various time requirements. You and your spouse may need more time to review and file all of the paperwork. So you may need to ask for an adjournment of your hearing. For information about how to do that, see the “Going to and being in chambers” section below.
Be Aware

There are very detailed and strict rules about scheduling cross-applications. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen’s Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

If your spouse combined his or her matrimonial property request with another kind of Application under the Divorce Act, you will have to follow the response processes related to those topics. For information about that, see the Information Pages about each topic.

If your spouse combined his or her matrimonial property request with another kind of Application under the Family Law Act, you will have to follow the response processes related to those topics. For information about that, see the Information Pages about each topic.

Getting the paperwork checked over

Before you finalize all of your paperwork by “swearing” it (next step), you might want to have it checked over. This is to make sure that you have completed your paperwork in the way that the Court rules and directions require. This “check” is a very helpful step. If there is an error, your paperwork may be rejected and you might have to start all over again. It is much easier to have your paperwork checked before you complete the next steps. Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

“Swearing” the paperwork

Once your paperwork is filled out and checked over, you will need to complete it by properly “swearing” it. “Swearing” a document means that you are promising that everything in the document is true (as far as you know). Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

For more information about what’s involved with this step, see the Understanding the Court Process Information Page.

“Filing” the paperwork

To file the paperwork, you must hand in the originals and multiple copies of everything. One copy of each document is for you and one is for any other parties. You file the documents at the Court of Queen’s Bench in the correct judicial centre.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The clerk will stamp and keep the original copies of all of your documents and will return the stamped copies to you. All documents must have a court stamp on them. These copies are what you will need for the next step.

“Serving” the paperwork

Once all of your paperwork is in order and properly signed, you will need to “serve” it on the other party. “Service” is the legal term for delivering certain kinds of documents. This is the same as you were served with their paperwork to begin with. You have to make sure that he or she gets the notice as soon as possible. This is also a very important step, because if the paperwork is not properly served, the judge might not hear your matter.

For more information on how to serve documents, see the Understanding the Court Process Information Page.

“Proving” that the paperwork was served

It is not enough for you to just serve the other party. You must also prove that you served the other party. To do so, the person who served the paperwork must swear an Affidavit of Service. This form must be completed by the person who completed the service, and filed before the court date. You will also need to bring a copy of this form with you to court.

Watch for your spouse’s response

If you responded to the matrimonial property application with only an Affidavit

If, in response to your spouse’s Application, you filed only an Affidavit, your spouse may file a “Supplemental Affidavit.” Be sure to read that when you get it.

You cannot file a Supplemental Affidavit in response to your spouse’s Supplemental Affidavit: that is not permitted.

Be Aware

There are very detailed and strict rules about the number and length of affidavits. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen’s Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

If you responded with an Affidavit and a Cross-Application

If you responded with both an Affidavit and an Application of your own, your spouse is now the Applicant in his or her Application, and the Respondent in your Application.

As the Respondent to your Application, your spouse can file a “response” to your application. Watch for that response, and be sure to read it when you are served with it.

When you are served with your spouse’s response to your Application, you may be able to file a “Supplemental Affidavit.” You can only use a Supplemental Affidavit to change some factual information. This could be either something that has changed since you filed your Application, or to respond to some updated factual information provided by your spouse. In your Supplemental Affidavit, you should explain how the information is new and why it was not available when you first completed your forms. You cannot use Supplemental Affidavits to repeat the same facts or to make another argument. For more information about the rules around Affidavits, see the Understanding the Court Process Information Page.

If you were given a court hearing in regular chambers (sometimes called “morning chambers”), there may not be enough time to file a Supplemental Affidavit. For that reason, Supplemental Affidavits are less common in morning chambers. Supplemental Affidavits are more common in special chambers (sometimes called “afternoon chambers”). No matter which kind of chambers hearing you have, if you really need to file a Supplemental Affidavit, you may need to ask for an “adjournment” (delaying the hearing until a later date). For information about how to do that, see the “Going to and being in chambers” section below.

Be Aware

There are very detailed and strict rules about the number and length of affidavits you are allowed in chambers. You will likely have to ask for the Court’s permission before filing a Supplemental Affidavit. These rules are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen's Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

The form for a Supplemental Affidavit is below.

PDF Affidavit - Supplemental
Government of Alberta
English
Remember

You will need to file and serve this Supplemental Affidavit as well, so give yourself enough time. Be aware of the general rule that all documents must be filed with the Court within a “reasonable time” before the date of the court hearing. Exact timelines can vary by judicial centre. Although a judge may allow an exception to this rule, he or she is not required to do so. Also, you risk that your matter will be adjourned (delayed until a later date) because you did not give your spouse enough time to review your documents.

If your spouse combined his or her matrimonial property request with another kind of Application under the Divorce Act, you will have to follow the response processes related to those topics. For information about that, see the Information Pages about each topic.

If your spouse combined his or her matrimonial property request with another kind of Application under the Family Law Act, you will have to follow the response processes related to those topics. For information about that, see the Information Pages about each topic.

Plan to go to the chambers hearing

The Application tells you when and where court will be held. Go to that hearing. If you do not go to court on that day, the court may make an order without you there.

If you live far away from the location of the hearing and cannot attend in person, you may be able to attend by video or telephone. Contact the court clerks well before the hearing date to arrange that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English
Questioning on Affidavit

Before a chambers hearing, it is possible for either party to formally “question” the other party about some of the facts set out in that party’s paperwork. This is called “Questioning on Affidavit.” It is not that common in general, but it is more common for special chambers than for regular chambers. In addition, it is not common for temporary or urgent applications, such as an Application for exclusive possession.

For more information about Questioning on Affidavit, including why either you or your spouse would do it and what exactly is involved, see the Understanding the Court Process Information Page.

Written interrogatories

The term “written interrogatories” refers to written questions that one party sends to the other. The purpose is to get facts and answers that will be required in the hearing, and that can help to settle issues in general. One party sends the questions, and the other party must respond in an Affidavit so that the answers are properly sworn and can be included as evidence at the hearing.

Written interrogatories are not that common for chambers applications. Most parties already provide the necessary facts and information required in their Affidavits. In addition, when going to chambers, there is often not enough time to complete this process. Written interrogatories are more common when the parties are going to trial. However, written interrogatories are useful when the other party may be trying to hold back information.

For more information on written interrogatories and the processes to follow if you want to try to use them, see the Understanding the Court Process Information Page.

Asking for changes to a chambers order (also called “varying”)

Sometimes, there is a change in circumstances and a matrimonial property order that was granted in chambers may need to be changed (or “varied”). To do so, the parties can use the standard Application forms above and simply indicate that the application is to vary a previous court order. Information about making Applications related to property issues is in the “Filing the paperwork for an Application (other than for exclusive possession)” section above.

Consent orders

Just because court proceedings have been started does not mean that you will now have to resolve everything by “going to court.” At any time, you can still come to an agreement and turn that agreement into a Consent Order.

If you have not yet started a matrimonial property action, you can still get a consent order. However, you would need to start an action for matrimonial property. Once the consent order is signed by the judge (see below), you can open a file with the consent order—contact the Queen’s Bench court clerks for more information. There will be a fee.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

To make a consent order about your matrimonial property, use the following form.

PDF Instructions: Consent Order
Government of Alberta
English

What to do with forms for completed Consent Orders

In most judicial centres, once you put the terms of your agreement into a draft Consent Order, and it has been signed and properly witnessed, you must go to court to have a judge grant the order. You will do that by attending “chambers” in the Court of Queen’s Bench. Chambers is where one judge sits in an open courtroom (meaning anyone can come in) and hears a list of different cases by different people.

Before the judge starts to hear the cases on the list, he or she will ask if there are any preliminary matters. At this time, people who want to ask the judge to sign a consent order can do so. For more information about how to do that, see the Understanding the Court Process Information Page.

In Edmonton, however, Consent Orders can be done as “desk orders.” Resolution and Court Administration Services can help with this.

Web Resolution and Court Administration Services
Government of Alberta
English

Once you have the court Order, remember that you must also file it with the Court of Queen’s Bench and serve it on your spouse. For more information about this step of the process, see the Understanding the Court Process Information Page.

Going to and being in chambers

Plan to go to the chambers hearing

The Application tells you when and where court will be held. Go to that hearing. If you do not go to court on that day, the court may make an order without you there.

If you live far away from the location of the hearing and cannot attend in person, you may be able to attend by video or telephone. Contact the court clerks well before the hearing date to arrange that.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

Preparing for chambers

You will be appearing in “chambers” in the Court of Queen’s Bench. Chambers is where one judge sits in an open courtroom (meaning anyone can come in) and hears a list of different matters by different people (yours is just one on the list). Depending on your location and the amount of time your matter is expected to take, you may be in court in the morning or the afternoon. For more information on chambers and the processes around it see the Understanding the Court Process Information Page.

It is your responsibility to make sure that you are in the correct courtroom. When you enter the Courthouse, you can ask a staff member for directions.

For most people, going to court will be a brand new experience. It may also come as a bit of surprise. Being in court is not really as it appears on most television shows, and you will likely not be familiar with the rules of court (yes, there are rules!). Also, most people find that dealing with family issues in court is stressful.

For these reasons, it is a good idea to prepare for the court experience. The following resources provide some very useful information on preparing for court in Queen’s Bench.



Web Courtroom etiquette
Government of Alberta
English

For even more information, see the Representing Yourself in Court Information Page.

In some courthouses, you may have the option of speaking with “duty counsel.” Duty counsel are volunteer lawyers who will discuss your legal issue with you for free. This can include what the judge may think of your requests and the “merits of your claim.” There are no income restrictions to speak with duty counsel, but the service is limited. They are only at certain courthouses on certain days. Also, there may be many people waiting to speak with them. If you need to speak to duty counsel, make sure you get to the courthouse early. Check with your judicial centre to verify the times and days duty counsel will be available.

For information about what matters duty counsel can help with, and which judicial centres have duty counsel available, see the following resource.

Web Duty Counsel - Legal Assistance at Court
Legal Aid Alberta
English

Asking for an adjournment

Sometimes, due to circumstances beyond their control, one or both of the parties will not be able to attend court, or will not be prepared for court. It is possible to ask for a court hearing date to be moved. This is called an “adjournment.”

If both of you agree, you can arrange for an adjournment well before the court hearing date. To find out how to do that, call your Court of Queen's Bench Chambers Clerk.

Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

You must have a good reason to ask for an adjournment. The Court is not pleased if adjournments are just asked for as a delay tactic. The Court keeps track of all adjournment requests. If there are too many requests for adjournments, the Court may deny the request or even impose penalties.

Be Aware

For matters in special chambers, there are additional rules about asking for adjournments. These rules are very specific and strict, and they are not just for lawyers—you must follow them even if you are representing yourself. For more information, see the following resource and call your Court of Queen's Bench Chambers Clerk.


Web Court of Queen's Bench Location & Sittings
Government of Alberta
English

In regular chambers, it is also possible to ask for an adjournment on the date of the court hearing. If both parties agree, you can ask for an adjournment before the chambers list begins (more information on chambers can be found on the Understanding the Court Process Information Page. The judge will ask if there are any preliminary matters—this is the time to make the request. Judges often grant such adjournments, but not always. For example, judges may refuse an adjournment if they are concerned that one or both of you will be harmed by the adjournment, or if they feel that the adjournment option has been abused. If the other party does not agree, you must wait for your turn on the list and request an adjournment when your turn comes. The judge may or may not grant the adjournment.

Generally, when you ask for an adjournment, you must immediately decide on a new hearing date. Sometimes, however, you may not know when you will need the hearing. For example, you may need time to complete something, but are unsure how long that will take. If that is the case, you may be able to adjourn “sine die”: this means without a set date.

Be Aware

If you have a lawyer, adjournment requests may go a bit differently. The other party may ask for an adjournment that you do not want. But, your lawyer might have to agree to it, as long as no harm will come to you as the client. This may be required by the lawyer’s professional Code of Conduct.

 

For more information about adjournments, see the following resource.

PDF Families and the Law: Representing Yourself in Family Court
Centre for Public Legal Education Alberta
English
See p. 28.

After the chambers hearing is over

In most cases, when your court hearing is over, the Order granted by the judge will be typed up by the court clerk. It may be ready shortly after the hearing. If it is not, it will be mailed to you. It will also be mailed to any other parties. If one of the parties is represented by a lawyer, the judge may ask that lawyer to type it up.

Once you have the Order, you may need to serve it on the other party—check with the court clerks. Remember, if you do have to serve the other party, you will also need to complete and file an Affidavit of Service.

Asking for “costs” in chambers

The party who was most “successful” at the court hearing may ask that the other party pay the costs involved with going to court. Although the Court can grant costs, this is not a very common thing.

A few things to keep in mind are as follows.

  • Costs are not always awarded. Generally, they are kept for situations in which one side has been completely unreasonable or very difficult (this is called “vexatious”);
  • Costs awarded are never as much as the actual cost of going to court. Instead, the court generally gives a pre-set amount; and
  • Even if you are awarded costs, you still have the problem of actually getting that money paid to you. This may not be easy to get from someone who was unreasonable and vexatious in the first place.

If you want to ask for costs, you simply ask for it in your Application (if you are the Applicant) or your Affidavit (if you are the Respondent) and again at the end of the hearing. If you forgot to ask for it in your paperwork, you can try to ask for costs at the end of your hearing. However, the judge may not consider the request if it was not included in the paperwork. Sometimes a judge will grant costs, even if it was not requested. This could happen if the judge feels that one side has been unreasonable or vexatious.

For more information about costs, see the following resources.


Web How much can be payable for court costs in Alberta?
Bayda Disability Law Firm
English
This is a private source. Learn more here.

Video Costs in Family Law Cases
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.
Be Aware

Judges can grant costs if the parties do not follow the rules about hearings (for example: rules about the paperwork restrictions and the deadlines). For more information about these rules, see the following resource.

Going to trial

Not all cases go to trial, but some do. Going to trial is very different than going to other kinds of court hearings. There are different rules and procedures. It is also much more time-consuming and much more expensive. For information about going to trial, see the Understanding the Court Process Information Page.

Appeals

It is possible to appeal a court decision granted in the Court of Queen’s Bench (this is true of both chambers and trial orders). You would have to appeal to the next highest court, the Alberta Court of Appeal.

However, you cannot appeal a decision simply because you are not happy with it. You can only appeal if you believe the judge has made an error of law or a substantial error on the facts. In addition, be aware that an appeal can only be made within 30 days of the order.

For more information, see the following resource and  the Understanding the Court Process Information Page.

Web Make an appeal at the Court of Appeal
Government of Alberta
English

Provincial Court

Queen's Bench

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