Property Division for Unmarried Couples

Law

Unmarried couples who are separating may need to divide their property. See the sections below to learn more about:

  • Exclusive possession of the family home
  • Dividing property for unmarried couples
  • Property issues in broken engagements
  • Unjust enrichment claims
  • The different rules for on-reserve property
  • Solving property issues out of court
  • Going to court to deal with property issues

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

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: July 2017
Who is this Information Page for?

This Information Page contains information about the law of property division for unmarried couples.

Be Aware

This information can also apply to people in a non-romantic (also called “platonic”) Adult Interdependent Relationship (see the “What the words mean” section below for more information).

This Information Page does not apply to couples who were married. If you were in a married relationship and wish to divide your property, see the Property Division for Married Spouses Information Page.

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

In general, the law on this Information Page is for families who live in Alberta. 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, please 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 property in non-married relationships. 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.

federal law

Laws that are made by the Government of Canada and apply to all Canadians, no matter which province they live in. Examples include: the Income Tax Act, the Criminal Code of Canada, and the Immigration Act.

provincial law

Laws that are made by a provincial or territorial government. In Alberta, provincial laws are made by the Government of Alberta and apply only in Alberta. Examples include: the Alberta Adult Interdependent Relationship Act, the Alberta Family Law Act, and the Alberta Wills and Succession Act.

“common-law” partner

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

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

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


Be Aware

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

Adult Interdependent Relationship (AIR)

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

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

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

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

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

The relationship does not have to be romantic or sexual to meet these requirements; it can be non-romantic (also called “platonic”).

Adult Interdependent Partner (AIP)

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

Adult Interdependent Partner Agreement (AIPA)

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

PDF Adult Interdependent Partner Agreement Regulation
Government of Alberta
English

conjugal

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

platonic

A word used to describe a relationship—a “platonic relationship” is a relationship of love or friendship, which may be intimate and affectionate, but is not sexual (conjugal).

cohabitation

Living together in the same home.

cohabitation agreement

A contract created by 2 or more people who:

  • live together, or are about to live together; and
  • are not married, and do not plan to get married in the near future.

In this agreement the parties can address many issues, such as:

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

jurisdiction

The right or ability of a government or a court to make decisions about things. This term describes either:

  • a particular government’s right, power, or authority to make laws; or
  • a particular court’s authority to deal with an issue.

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.

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.

spouse

A person who is legally married to another person.

Be Aware

Some of the resources linked on this Information Page 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.”

common law

A body of law that is created by court decisions. Common law develops when no written law about a certain topic has been passed by the government. To help decide an issue related to that topic, judges can consider decisions from previous cases that are similar. In this way, a set of rules is created by these court decisions over time. This is known as the “common law.” For example: much of the law about contracts is common law.

precedent

A decision from one legal case that may either be “binding” or “persuasive” on other courts.

  • If a decision is binding on other courts, the other courts have to follow the same method of deciding similar cases.
  • If a decision is persuasive for other courts, other courts will strongly consider applying the result of that case when they later decide cases with similar issues or facts.

This “law of precedence” is meant to increase fairness in the justice system. If the facts of the cases within a jurisdiction are the same, then the outcome should usually be the same. 

In general, cases are binding on all lower courts within the same jurisdiction. For example, the highest court in Alberta is the Alberta Court of Appeal. So any decisions made in the Alberta Court of Appeal must be followed in the future by all the courts in Alberta (including the Court of Queen’s Bench and the Provincial Court of Alberta). Similarly, decisions by the Supreme Court of Canada would be binding on all courts in Canada. This is because the Supreme Court of Canada is the highest court in the country and applies to all Canadian courts. See the following resource for a chart of how Canadian courts are organized.

Web Structure of the Courts
Canadian Superior Courts Judges Association
English

Cases from another jurisdiction (for example, a case in British Columbia) are not binding on courts outside of that jurisdiction. But some judges may still consider the facts of the case anyway if they are similar. For example, a court decision made by a court in British Columbia could be a “persuasive” case. This means that it may be considered by Alberta judges if the facts of the cases are similar. But an Alberta judge may choose to use a different method of deciding the case. In general, the higher the court that made the decision, the more persuasive the decision will be.

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.

to hold property in trust

A relationship where one person (a “trustee”) legally holds property for the benefit of another person (a “beneficiary”). The trustee manages the property and collects income from the property, and then passes the income on to the beneficiary. This happens often with children, because children are too young to hold and manage property themselves.

exclusive possession

The right of one partner to have sole possession of the home the couple once shared. This means that the other partner cannot continue living there. This can also include household goods.

joint tenancy

When 2 or more people own all of an asset together, that property is held in “joint tenancy.” Each person involved is called a “joint tenant.” For example: a joint bank account. Under joint tenancy, all of the joint tenants own all of the money in the bank account (not just their “share”). If one of the joint tenants dies, the entire account goes to the surviving joint tenant(s): the property is not part of the deceased’s estate.

tenancy in common

When 2 or more people own an asset together, but each owns a portion, that property is held in “tenancy in common.” Each person involved is called a “tenant in common.” For example: land. Under tenancy in common, each of the tenants owns a portion (or share) of the value of the land. If one of the tenants in common dies, that person’s portion does not automatically go to the other owner(s). Instead, that portion goes through the Will of the deceased.

unjust enrichment

A type of common law cause of action that can arise where one party is the legal owner of property, but both parties contributed in some way to getting that property. In such a case, the party who is not the legal owner may be able to claim an interest in that property. The cause of action is based on the fact that in some cases it may be unfair (or “unjust”) to allow the legal owner to benefit from (be “enriched” by) the other party’s contributions.

Property division claims for unmarried partners are often based on unjust enrichment.

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.

“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.

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 Family Law Act (and associated Regulations)
Government of Alberta
English

Web Law of Property Act (and associated Regulations)
Government of Alberta
English

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



Web Public Service Superannuation Act
Government of Canada
English

Web Pension Benefits Standards Act, 1985
Government of Canada
English

Web Pension Benefits Division 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-related matters you can—and sometimes you must—choose one of two courts. 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. These are often faster and less expensive than going to court. For more information, see the “Out of court resolution options” section below.

However, the division of property can only be dealt with in the Court of Queen’s Bench (QB). Similarly, claims for “unjust enrichment” can only be dealt with in QB.

As a result, if you are also dealing with other separation-related issues, you might consider dealing with all of your issues in QB. However, you do not have to. If you also have child and support issues that you will need to go to court about, you can choose to use the Provincial Court for those issues.

Be Aware

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

For detailed information on what to consider when choosing a court for your other family law matters, see the following Information Pages:

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 you are the victim of domestic violence, there are a few places to start.

  • 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.
  • Know that it is never your fault, or the fault of the child. The responsibility belongs only to the abuser.
  • If you are planning on leaving a violent situation and deciding which steps to take first, see the Safety Planning Information Page.
  • 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 court may not be the best option. Learn about Family Violence and the Legal Process.
  • A court can grant orders quickly if necessary. These are called “interim” orders. For information about these, see the Process tab of this Information Page.
  • 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. For more information, see the Family Violence: Resources to Help and Working with a Lawyer Information Pages.
  • 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 rent: Breaking your lease without penalty

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

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

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

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

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

Web Safer Spaces certificate to end tenancy
Government of Alberta
English


PDF Information for Tenants
Government of Alberta
English
See p. 12.

How to use this website

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.

More information

For more information about what you can do in situations of family violence, see the Family Violence and the Legal Process Information Page.

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 partner has just told you that he or she is leaving. Maybe it is you who is ready to leave. This can be scary and overwhelming. That is natural. 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 have 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 partner. 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). 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 partners’ 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.


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

Video Property Division
Edmonton Community Legal Centre
English
Start at 13:00.

Web A Guide to the law in Alberta regarding common-law property
Student Legal Services of Edmonton
English
See “Property Rights for Common-law Couples.”

PDF Common law property
Canadian Bar Association
English

Video What’s Mine is Yours
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.
If there was a domestic contract (cohabitation agreement)

A cohabitation agreement is a contract created by two people who are living together, or are about to start living together. In this agreement the couple can address many issues. For example, it can include what the property rights of both partners will be if they separate.

In general, if you and your partner have a cohabitation 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 partner provides a legal reason that the agreement should be cancelled or “set aside.” For example, if you can prove that one of you did not understand the contract because of something that was going on when the agreement was made. Or, if one of you did not provide full financial disclosure to the other.
  • One or more parts of the agreement are not enforceable. For example, you may have included an agreement that no child support would be paid. This is not allowed. It should not have been agreed to, and it will not be honoured. This is because child support is the right of the child.

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

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

Video Property Division
Edmonton Community Legal Centre
English
Start at 2:20 and at 17:50.
The “common law” that applies to non-married people dividing property

When many people think of “the law,” they think of documents passed by their governments, where all the rules about what must be done are listed. This is known as “statutory” law, and it is passed by the federal parliament or provincial legislatures. These kinds of laws are also called “statutes,” “acts,” or “legislation.”

However, in most of Canada (including Alberta), this is not the only kind of law. There is also something called “common law.” Common law is essentially a set of rules, created by court decisions over time to address issues when there was not a written law (a “statute”) that covered the issue. For example: much of the law about contracts is based on common law. For more detailed information about common law, including who creates it, how it is enforced, and more examples, see the Our Legal System Information Page.

The law around non-married couples dividing up property is common law. It is not formally written in legislation. The Alberta legislature, which would be the government that could pass a law about non-married couples dividing up property, has never done so. As a result, if an unmarried couple has a property division issue, it is only the principles of the common law that can be applied.

Be Aware

Other provinces have statutes that address the division of property for unmarried couples. Alberta does not.

People often think that once they live together, if the relationship ends, all of the same rules will apply to them as if they were married. This is not the case.

You may have heard of a law called the Matrimonial Property Act (MPA). This is the statute that deals with the division of property for people who were married, and whose marriage is now coming to an end. If you were not legally married to the person with whom you are trying to divide up property, the Matrimonial Property Act does not apply to you. This means that if you ask a court to make property division decisions for you, the Court will not use the MPA to reach a decision.

For more information, 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. 15.

Video Property Division
Edmonton Community Legal Centre
English
Start at 13:00.
Be Aware

Although the Matrimonial Property Act does not apply to non-married situations, you and your former partner can agree to use the principles of the MPA in coming to an agreement about the division of property. For information about division of property under the MPA, see the Property Division for Married Spouses Information Page.

Which non-married people does this “common law” apply to?

The “common law” described above can apply to both romantic and non-romantic relationships in Alberta.

Romantic (“conjugal”) relationships

On this Information Page, and in the law, the issue of property division for “unmarried” people refers to:

  • two people;
  • of either the opposite sex or the same sex;
  • who have lived together in a romantic (also called “conjugal”) relationship;
  • for any period of time (there is no minimum period of time).

This can be confusing, as romantic relationships are described differently in everyday conversation and in the resources on this page. There are various terms and phrases used to describe such relationships, and it can get confusing.

Common-law partners under federal law

Under most federal law, you become “common-law partners” (also called “unmarried spouses”) after one year of living together in a romantic (or “conjugal”) relationship, or when you have a child together. As a result, for federal purposes (such as filing taxes), your “marital status” becomes “common-law.” This happens no matter where you live in Canada. The term “common-law” is used for various federal purposes (in other words, for things related to the government of Canada, such as income tax). Federal laws apply to all Canadians, including Albertans. Therefore, a couple may be considered “common-law” under federal law, but may not meet the requirements to be “Adult Interdependent Partners” under Alberta law (see just below).

Under the common law, the issue of the division of property for non-married couples in Alberta does not only apply to Adult Interdependent Partners. It applies to couples who have been living together in a conjugal relationship for less than 3 years as well. There is no minimum requirement of time.

Adult Interdependent Partners under Alberta law

However, Alberta law does not use the term or the concept of “common-law” partners, except for certain federal issues. In Alberta, what many people think of as a “common-law” relationship is called an “Adult Interdependent Relationship.” However, there are many differences between the two relationships under the law.

  • In Alberta, you are not automatically “Adult Interdependent Partners” after living together for one year; and
  • Adult Interdependent Relationships, unlike federal “common-law” relationships or other provinces’ laws about living together, can occur in non-romantic (in other words, non-conjugal) situations.

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

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

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

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

You cannot become the Adult Interdependent Partner of someone if you are related by blood or adoption, unless you sign an Adult Interdependent Partner Agreement with him or her.

Under the common law, the issue of the division of property for non-married couples in Alberta does not only apply to Adult Interdependent Partners. It applies to couples who have been living together in a conjugal relationship for less than 3 years as well. There is no minimum requirement of time.

Be Aware

This is not the case with other separation-related issues. For example: under Alberta law, a court can only give partner support if the parties had been in an Adult Interdependent Relationship.

For more information about the differences between “common-law” relationships and Adult Interdependent Relationships, see the Living Together: Common Law Partnerships & Adult Interdependent Relationships Information Page.

For more information about other separation-related issues for non-married couples, see these Information Pages:

Non-romantic (“platonic”) relationships

Much of the information on this Information Page is written for unmarried “romantic” couples. But, the law about property division for unmarried couples can also apply to people who have lived together in a non-romantic (also called “platonic”) relationship.

A person could decide to go to court about property division with a non-romantic partner. This would be making a claim of “unjust enrichment” against the non-romantic partner. In this case, the court will consider two main things when making its decision:

  1. the level of interdependence between the partners, and
  2. the length of the relationship.

In general, the shorter the relationship and the less interdependence between the partners, the more difficult it is to make the claim.

For more information about the breakdown of platonic Adult Interdependent Relationship, see the Ending a Non-romantic Adult Interdependent Relationship Information Page.

Be Aware

Claims for unjust enrichment are very complicated and known to be difficult to win. As a result, you will likely want to consult a lawyer about your situation. For more information, see the Working with a Lawyer Information Page.

How property is divided for unmarried couples

As we said above, when dividing property, unmarried couples are treated differently than married couples.

For unmarried couples, there is no specific law about dividing property. And the rules for married couples (from Alberta’s Matrimonial Property Act) do not apply to unmarried couples. This means that you cannot assume that property you got while you were living together will be shared equally when you break up.

Instead, the only rules about dividing your property are:

  • from the “common law,” and
  • from the general laws about property ownership.

For more information, 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. 15.

Video Property Division
Edmonton Community Legal Centre
English
Start at 13:00.

You can learn more about the “common law” rules in the “The ‘common law’ that applies to non-married people dividing property” section above.

Be Aware

Although the Matrimonial Property Act does not apply to non-married situations, you and your former partner can agree to use the principles of the MPA in coming to an agreement about the division of property. For information about division of property under the MPA, see the Property Division for Married Spouses Information Page.

The starting position

In general, the property of unmarried partners is to be divided in this way:

  • the property that was bought during the relationship belongs to the person who paid for it and who is registered as its owner; and
  • joint assets are usually divided equally.

Similarly, the debts of unmarried partners are to be divided in this way:

  • when a debt is in only one of the partner’s names, that partner must pay all of the debt; and
  • when a debt is in both partners’ names, each partner is must pay half of the debt.

For more information about the concept of “joint” assets and debts, see the following resource and the “Understanding joint ownership and debt” section of the Before Moving in Together: Legal Considerations Information Page.

Web Financial Separation
Solutions Credit Counselling Service Inc.
English

Exceptions

There are some exceptions to the starting position listed above. This means that in certain situations the rules may be different. Most of these exceptions come from other specific laws that give:

  • very limited rights to unmarried partners, or
  • general rights that apply to everyone, including non-married partners.

Brief introductions to these exceptions are listed below.

Canada Pension Plan (CPP) credits

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.

When common-law partners have been separated for at least 12 months, either party can apply to have the CPP credits built up during the time they lived together divided equally between them.

For more information about splitting CPP credits, see the following resources.




There are also other pension plans. They might be public, private, federal, or provincial. These do not work the same way as the CPP. Each pension plan is different, and the rights of unmarried partners will vary with each plan. For more information, see:

  • the terms of the individual pension plan, and
  • the following laws that govern pension plans.


Web Public Service Superannuation Act
Government of Canada
English

Web Pension Benefits Standards Act, 1985
Government of Canada
English

Web Pension Benefits Division Act
Government of Canada
English

Land in joint names

What if the former partners got “land” in joint names during the relationship? This “land” can be land, a house, or a condo. If this is the case, either partner may make an application using Alberta’s Law of Property Act to ask for a court order that deals with that land. This can be done if the land was owned by the partners as “joint tenants” or as “tenants in common.” (See the “What the words mean” section above.)

There are 3 options for dividing joint land in Alberta:

  1. physically divide the land (if possible);
  2. sell the property and divide the proceeds between the partners; or
  3. sell the interest of one partner to the other partner (this is also called “buying out” one of the partners).
Be Aware

This applies only to land in Alberta. For land in another province or territory, it is the law of that province/territory that would apply. For more information, see the Family Breakdown and Out-of-Province Issues Information Page.

Exclusive possession

In certain situations, it is possible to ask the Court for an order of “exclusive possession.” This type of order says that only one partner gets to live in the home. The order will have a time limit. Often the order includes goods in the house, and it can even apply to a vehicle. The other partner can no longer live there (until the Court says otherwise).

There are several different possible ways of applying for exclusive possession, depending on your circumstances. For more information, see the “Exclusive possession of the family home” section below.

Unjust enrichment

When the partners lived together for a significant amount of time, and/or the circumstances of the relationship are such that it would be unfair for the standard common law rules to apply—in other words, where it would be unfair for a partner who is otherwise entitled to the property to actually keep the property—it may be possible to ask the Court to divide property in a different way. This is called making an application for “unjust enrichment.”

More information

See the following resources for more information about property division for unmarried couples.


PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
Start on p. 15.

Video Property Division
Edmonton Community Legal Centre
English
Start at 13:00.

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

Web A Guide to the law in Alberta regarding common-law property
Student Legal Services of Edmonton
English
See “Property Rights for Common-law Couples.”

Web The Adult Interdependent Relationships Act
Centre for Public Legal Education Alberta
English
See “Division of Property.”

Web Common Law Relationships and Division of Assets
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.

Video Joint Tenancy
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 Common Law Relationships (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.
Do we have to use this “common law”?

As described above, the Matrimonial Property Act (MPA) does not apply to non-married situations. This means that if you ask a court to make property division decisions for you, the Court will not use the MPA to reach a decision. However, you and your former partner can agree to use the principles of the MPA in coming to an agreement about the division of property (both assets and debts). If you wish to take an approach that is closer to equal division, you will want to review the law about the division of property under the Matrimonial Property Act: see the Property Division for Married Spouses Information Page.

Be Aware

For some kinds of property, there are already procedures that allow for division by non-married partners as well as married spouses (for example: pension division and RRSP/RRIF spousal transfers). In certain situations where the partners cannot agree on who will live in the home, it is possible to ask Court for an order of “exclusive possession.” For more information, see the section below called “Exclusive possession of the family home.”

Exclusive possession of the family home

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

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

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

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

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

Family Violence

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

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

  • Whether other affordable housing is available and suitable for either party.
  • 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 partners.
  • Any violence committed against a partner or the children.

For more information, 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. 15.

Video Property Division
Edmonton Community Legal Centre
English
Start at 17:00.

If you are granted an order for exclusive possession, you may have to cover the expenses to the home. You may also possibly have to pay “occupation rent” to your former partner.
For more information, see the following resources.

Video Exclusive Possession of the Matrimonial Home
Feldstein Family Law Group
English
This resource is from private source outside Alberta. Learn more here.

Video Occupation Rent
Feldstein Family Law Group
English
This resource is from private source outside Alberta. Learn more here.

Web Paying Expenses When Spouses Separate
Éducaloi
English
This resource is from private source outside Alberta. Learn more here.

Video Who Pays Home Expenses After Separation?
Galbraith Family Law
English
This resource is from private source outside Alberta. Learn more here.

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

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.

Be Aware

Just because you live in the house does not necessarily mean that you have the right to change the locks. If you own the home, you cannot change the locks until you have an order of exclusive possession. If the home is a rental, the situation is more complicated (see below).

There are several different possible ways of applying for exclusive possession, depending on your circumstances.

If there is also an action for unjust enrichment

If you have already started a court action for unjust enrichment (or are doing so at the same time as applying for exclusive possession), you can make the application as part of your action.

If there is no action for unjust enrichment: Using Alberta’s Family Law Act

If you have not already started an action for unjust enrichment (and do not plan to immediately start one), you may be able apply for exclusive possession under the Family Law Act. However, to do so, you must meet 2 requirements:

  1. You can only apply for exclusive possession if you are in an “Adult Interdependent Relationship” with your partner (see the “What the words mean” section above).
  2. You can only apply for exclusive possession when applying for child support and/or partner support, The Court can only order exclusive possession at the same time as it orders child support and/or partner support. This is because the use of the home is seen as a form of support. In other words, a partner cannot apply for exclusive possession on its own.

If you live on-reserve: Using the federal Family Homes on Reserves and Matrimonial Interests or Rights Act

The Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) was passed several years ago. Under this law, a common-law partner 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 common-law partner can apply for an Emergency Protection Order (FHRMIRA EPO).
  • For less urgent situations, a common-law partner 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.

For more information, see the following resource.

When the family 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 partners want to do.

Example 1:

  • Hunter and Jesse shared a rented apartment.
  • Both partners 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. Now victims of abuse are allowed to break their lease early, without a financial penalty. To do this, you must give your landlord a certificate from the Alberta government’s Safer Spaces Processing Centre. The Safer Spaces Processing Centre can give you this certificate if you give them one of the following:

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

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

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

Web Safer Spaces certificate to end tenancy
Government of Alberta
English


PDF Information for Tenants
Government of Alberta
English
See p. 12.

For more information about rental challenges for victims of domestic violence, see the following resources.

Web Domestic Violence, Renting and the Law
Centre for Public Legal Education Alberta
English

PDF The Hidden Homeless: Residential Tenancies Issues of Victims of Domestic Violence
Centre for Public Legal Education Alberta
English
This resource can be a challenge to read. Learn more hereStart on p. 23.

More information about exclusive possession

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

Web A Guide to the law in Alberta regarding common-law property
Student Legal Services of Edmonton
English
See “Common-law Property in Alberta Legislation.”

Web The Adult Interdependent Relationships Act
Centre for Public Legal Education Alberta
English
See “Exclusive Possession of the Matrimonial Home.”

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
See p. 21.

Video Property Division
Edmonton Community Legal Centre
English
Start at 17:00.
Unjust enrichment

As described above, one of the starting points in the division of the property of unmarried partners is that the property belongs to the person who paid for it and who is registered as its owner.

Sometimes, however, it may not be fair to let one partner keep all the property that is in his or her name. This is especially true in situations where:

  • the parties lived together for a significant amount of time, or
  • the other partner contributed to the relationship in a way that did not involve money and property, and now that partner finds himself or herself with little property.

If the way things have happened in the relationship make it unfair to use the standard common law rules, it may be possible to ask the Court to divide the property in a different way. This is called making an application for “unjust enrichment.”

For examples of situations of unjust enrichment, see the following resources.

PDF Property division for unmarried couples: General information
Government of Alberta
English
Start on p. 2.

PDF Families and the Law: Property Division for Married and Unmarried Couples
Centre for Public Legal Education Alberta
English
Start on p. 18.

Video Property Division
Edmonton Community Legal Centre
English
Start at 13:30.
Be Aware

There is a 2-year limitation period to file claims for unjust enrichment. In general, this means 2 years from the date on which you begin to live “separate and apart.” However, in serious, significant, or compelling circumstances, the start of the limitation period may be delayed. For more information about the exact meaning of “separation” and the rules around becoming “former” Adult Interdependent Partners, see the Ending a Non-married Romantic Relationship Information Page.

A claim of unjust enrichment is not easy to make. You may want to get legal advice. For more information, see the Working with a Lawyer Information Page.

See the following resources to learn about:

  • The 3 circumstances that must be present to prove a claim for unjust enrichment
  • The types of compensation that may be awarded by a judge if the claim is proven

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

Video Property Division
Edmonton Community Legal Centre
English
Start at 13:30.

Video Unjust Enrichment
Common Law Separation Canada
English
This is a private source. Learn more here.



Web Supreme Court of Canada Clarifies Unjust Enrichment Principles
Clark Wilson LLP
English
This is a private source. Learn more here.

Web Common Law Relationships and Division of Assets
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.


Web Defending An Unjust Enrichment Claim In Alberta
Kirk Montoute LLP
English
This is a private source and can be a challenge to read. Learn more here.


PDF Recent Developments Regarding Unjust Enrichment
Bottom Line Research & Communications
English
This is a private source and can be a challenge to read. Learn more here.

Web LawNow: Where There's a Will, There's a Way
Centre for Public Legal Education Alberta
English
See p. 26-31.

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 Kerr v. Baranow – The Wages of Sin Revisited (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.
Be Aware

If you are making a claim for unjust enrichment, you are asking the court to divide the property between you in a way that is different than the usual method of division for unmarried partners. To better understand what kinds of property can be divided and how property may be divided, see the Property Division for Married Spouses Information Page. Although that Information Page is about the division of property for married spouses, if you are making a claim for unjust enrichment, many of the concepts will be important for you.

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 partners share the care of their pets.

The law, however, does not view pets as family members. Legally speaking, pets are property. That is why courts do not use the term “custody” for pets—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 partners do not want to sell them in order to divide the proceeds. However, pets are still technically property. As a result, they are treated the same as the property described above. For unmarried couples, this generally means figuring out who “owns” the pet, both on paper and in terms of who really took care of the pet.

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 partners 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 a private source outside Alberta. Learn more here.

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

Web Pet Custody: Who Gets the Family Dog?v
Waterstone Law Group LLP
English
This resource is from a private source outside Alberta. Learn more here.
If you were engaged: The engagement ring(s) and wedding gifts

The engagement ring(s)

Usually, whoever broke off the engagement gives up the right to the ring. This approach views the ring as the symbol of the contract to marry: whoever breaks the contract loses the ring.

However, court judgments do not always take this approach. Instead, some courts have viewed the ring as a “conditional” gift. If the condition is not met (in this case, the “condition” is the wedding), the ring should be returned to the person who bought it, no matter who ended the engagement.

Other courts may view the ring as an “unconditional” gift, meaning it belongs to the recipient as soon as it is given, no matter what happens later (including the wedding not going ahead).

Given the high cost of going to court, bringing this issue to court is quite rare and is usually only done in extreme circumstances.

For more information about what happens to the engagement ring, see the following resources.

Web The Engagement Ring: Whose Property is it?
Centre for Public Legal Education Alberta
English

Web Who keeps engagement ring?
Wagner Sidlofsky LLP
English
This is a private source. Learn more here.

Web About marriage in Canada
Duhaime.org
English
This is a private source. Learn more here.

For information about non-property issues related to the end of an engagement (such as the concept of “breach of promise to marry”), see the Ending a Non-married Romantic Relationship Information Page.

Wedding gifts

Sometimes, engagements are ended very close to the wedding day, or even on the wedding day. In such cases, many people may have bought gifts for the couple who was supposed to get married.

Gifts given “in contemplation of marriage” (in other words, “wedding gifts”) are generally returned to the people who bought them. However, this topic is not really dealt with in law, and is more a question of custom.

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 common-law partner 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 common-law partner can apply for an Emergency Protection Order (FHRMIRA EPO).
  • For less urgent situations, a common-law partner 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.

For more information, see the following resource.

Blended family considerations

Under Alberta law, the law around property division for non-married couples 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, the law around property division for non-married couples 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 former partner 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

In order to make an application for exclusive possession, the person applying must be the Adult Interdependent Partner (AIP) of the person responding. Therefore, this option is only available to a partner who is a legally recognized AIP.

An application for unjust enrichment is not governed by either the Adult Interdependent Relationships Act or the Family Law Act. Therefore, any person who meets the requirements may be able to bring an application for unjust enrichment. However, as polyamorous relationships are quite new to the legal landscape, you can expect difficulties.

Problems might also arise because polyamorous relationships can still be viewed as against “public policy.” For something to be consistent with public policy, it must be consistent with the law and the general social and moral values of our society. As you may know, polyamory is not consistent with the Divorce Act, the Adult Interdependent Relationships Act, or the Family Law Act. As a result, if you think you might want to bring an action for unjust enrichment, you will want to speak to a lawyer. For more information, see the Working with a Lawyer Information Page.

Concerns for immigrants and other non-citizens

One or both partners may not be citizens or permanent residents of Canada because they are:

  • in the process of immigrating;
  • 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 the ​Family Breakdown and the Immigration Process Information Page.

Be Aware

Under an immigration policy from October 25, 2012 to April 17, 2017, some permanent residents had to continue living with their sponsor for 2 years to keep that legal status. During this 2-year time, they were called a “conditional” permanent resident. As of April 18, 2017, conditional permanent residency no longer applies. Anyone who had been considered a conditional permanent resident is no longer subject to the conditions. If you were being investigated for not following this rule after separating from your sponsor, the investigation will stop.

If one or both of the partners are involved in criminal proceedings

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

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.

Be Aware

A court is not likely to uphold an agreement about property issues unless it is properly drafted by a lawyer and both parties get independent legal advice.

Coming to an agreement on your own

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

Mediation

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

Arbitration

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

Negotiating through lawyers

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

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

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

Collaborative Family Law

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

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

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

More information

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

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

Video Property Division
Edmonton Community Legal Centre
English
Start at 2:55.

PDF Breaking up: Without court
Canadian Bar Association
English

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

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

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

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

Before you go 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.

Resolving your property issues in court

Below is an introduction to what you need to know if you decide to take your issues to court. More detailed information about the exact process to follow (including the forms you will need) is on the Process tab of this Information Page.

Understanding the court system

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

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

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

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

Paying fees

When you start or respond to a court action, there is often a filing fee that must be paid. There can also be fees for additional applications related to your case. For a current list of fees and options if you can’t afford the fees, see the following resources.

Web Court fees
Government of Alberta
English

Web Waiving a filing fee
Government of Alberta
English

PDF Court Fees & Waivers in Alberta
Centre for Public Legal Education Alberta
English

Representation in court

Once you get to court, you can:

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

See the Representing Yourself in Court and the Working with a Lawyer Information Pages 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 Queen's Bench
Government of Alberta
English

Process

Learn more about how to divide your property if you were not married, including:

  • 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

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: July 2017
Who is this Information Page for?

This Information Page contains information about the process of property division for unmarried couples. This information can also apply to people in a non-romantic (also called “platonic”) Adult Interdependent Relationship. For more information, see the “What the words mean” section on the Law tab of this Information Page.

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 married. If you were in a married relationship and wish to divide your property, see the Property Division for Married Spouses Information Page. The property of married people is divided using Alberta’s Matrimonial Property Act.

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. 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, please 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. 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. These are often faster and less expensive than going to court. For more information, see the “Out of court resolution options” section below.

However, the division of property can only be dealt with in the Court of Queen’s Bench (QB). Similarly, claims for “unjust enrichment” can only be dealt with in QB.

This may mean that you will want to deal with all of your separation-related matters at the same time in QB. However, you do not have to. If you also have child and support issues that you will need to go to court about, you can choose to use the Provincial Court for those issues. For detailed information on what to consider when choosing a court for your other family law matters, see the following Information Pages:

Be Aware

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

Making a list of your property

The first step in figuring out how best to divide family 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 partner own (including property that is outside of Alberta).
  • Indicate which property you owned before the relationship, got during the relationship, and even which property you got after separation.
  • 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 about your partner’s property before you forget.

All of this information will be important in deciding how to proceed with the division of your property. You will need the same information whether:

  • you use the common law rules for non-married partners, or
  • you try to come to an agreement with your partner by using the rules of the Matrimonial Property Act.

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

Video Dividing your Household Contents
Feldstein Family Law Group
English
This resource is from a private source outside Alberta. Learn more here.
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 partner 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.

Court steps you can take

In addition to out-of-court steps, there are 2 steps that you may be able to take in court to try to protect your property. One can protect business assets, the other is for real estate.

Getting a receiver appointed for your business

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.

Web Bankruptcy, Insolvency and Receivership
Centre for Public Legal Education Alberta
English

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 partners for 25 years and shared a house.
  • The house is in Riley’s name only.
  • Jesse wants to ask 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 that is arranged.
  • Jesse can start a lawsuit and 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.

These court steps are not easy tasks. You may wish to consider consulting a lawyer. For more information, see the Working with a Lawyer Information Page.

Valuing the property

Depending on how you choose to proceed with the division of property, you may 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 any 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.

To help determine the value of the various assets and debts at different dates, you will want to start collecting statements, tax documents, receipts, and any other paperwork that can show the value. If you think you might need someone to complete a professional assessment, you can start to do research into who you might consider hiring.

For more information about issues related to valuation of property, including examples of how property can be valued, see the “Determining the value of the property” section of the Property Division for Married Spouses Information Page. Although that Information Page is about the division of property for married spouses, if you and your partner choose to divide property in a manner similar to that of married spouses, the general concepts described there can still apply to you.

Disclosure

Sometimes each partner 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. This is even more true if you are trying to divide the property in an “equal” way (remember: the law for unmarried partners does not require equal division), or if you think you may make a claim for unjust enrichment.

For more information about disclosure, see the following resources.

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.

Web Signs that your spouse is hiding assets
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Don't hold back when it comes to property division
Kirk Montoute LLP
English
This is a private source. Learn more here.

If you are both cooperative with one another, you can get property information from your former partner by simply asking for it. If you’d like, you can use the official court form: the “Notice to Disclose” as a guide. This can be helpful as it has a clear list of all of the information you will need to include. You may already be using this form as part of your court paperwork if you are asking for partner support and/or child support.

PDF Notice to Disclose / Application (Form FL-17 / CTS3835)
Government of Alberta
English
Instructions are included on the form. This link only opens in Internet Explorer. Learn how you can view this form in Chrome and Firefox.
Out of court resolution options

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

Be Aware

A property agreement reached on your own or with the help of another person (such as a mediator) will not likely be held up by the court unless it is properly drafted by a lawyer and you each get independent legal advice.

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.

Tip

Reaching an agreement about the division of your property can take a while. Keep in mind that there are time limits for filing a claim for unjust enrichment (see the “Unjust enrichment” section on the Law tab of this Information Page). If you are nearing that time limit and you have not yet filed your 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

Courthouse staff and Resolution and Court Administration Services cannot help with the drafting or completion of the agreement.

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).

Other Information Pages also describe RCAS services related to specific legal issues:

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: 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.

What is an “Application”?

An “Application” is a court hearing, used by separating partners, to temporarily solve their separation-related matters before coming to a final agreement, or before their case is permanently decided at a trial. For example, a person could make an application for exclusive possession.

If you and your partner disagree about any separation-related topics, you may need to file one or more Applications to have the Court hear the issues and decide for you.

There is usually a fee for making an application in the Court of Queen’s Bench. For a current list of fees and options if you can’t afford the fees, see the following resources.

Web Court fees
Government of Alberta
English

Web Waiving a filing fee
Government of Alberta
English

PDF Court Fees & Waivers in Alberta
Centre for Public Legal Education Alberta
English

Chambers

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 Process 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.

You can also bring applications for other separation-related issues under the Family Law Act. For information about making such applications, see the following Information Pages.

Be Aware

Alberta has two different levels of court that hear matters related to family breakdown. All property issues must be dealt with in the Court of Queen’s Bench. For other separation-related issues, parties have a choice about which level of court to use. If you need to go to court for any other separation-related issues, you may wish to consider having them all heard in Queen’s Bench. This is because the Alberta courts prefer to keep all matters relating to one family within one level of court.

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 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 Process Information Page.

Queen’s Bench “Practice Notes”

“Practice Notes” are additional rules issued by the Court, often about court procedures. These rules apply only in the Court of Queen’s Bench (not in Provincial Court). 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 if there is no unjust enrichment action started (using the Family Law Act)

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 what has happened so far and what else you might be dealing with in court at the same time.

This section is about making an application for exclusive possession if there is no unjust enrichment action started. This is done using the Family Law Act.

Be Aware

You can only ask for exclusive possession under the Family Law Act at the same time as you apply for child support and/or partner support. If you are not also applying for child support and/or partner support, you cannot apply for exclusive possession under the Family Law Act. So, you will first need to understand the law around child support and/or partner support under the Family Law Act—see the following Information Pages.

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

To determine this, there are 2 issues to consider.

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

Or should you go to court 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 general rule is that a person must file their documents and go to court in the judicial centre where they live.

If this is your first application related to the breakdown in the relationship, you will file it in the judicial centre where you live.

However, if there is already an application related to the breakdown in the relationship, you may have to file it in the judicial centre where that other application was made. The rule in Queen’s Bench is that once a court file is started, any additional documents must be filed in the judicial centre where the court file is located.

If you have questions about where you should apply, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

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 at any point you want to change the judicial centre, you will have to make a separate application for that. This application must be made 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.

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 Statement for Exclusive Possession

Remember

You can only ask for exclusive possession at the same time as you are applying for child support and/or partner support. As a result, you will first need to understand the law around child support and/or partner support under the Family Law Act—see below for more information.

To request 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 to 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 Statement(s) for child support and/or partner support

You can only ask for exclusive possession at the same time as you apply for child support and/or partner support.

To apply for support, you must use:

  • the Family Law Act “Statement - Child Support” and/or the “Statement - Partner Support”; and
  • 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 these forms, as well as the information you will need to file them, on the Queen’s Bench Process tabs of the following Information Pages:

More information you will need

The Queen’s Bench Process tabs of the above two Information Pages also provide all of the information you need about the other steps involved in making the application, such as:

  • getting the paperwork checked over;
  • filing the paperwork;
  • picking a hearing date;
  • serving the paperwork;
  • the kind of response you can expect from your former partner;
  • how to respond to your former partner’s response;
  • questioning on affidavit; and
  • written interrogatories.

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.

Responding to an Application for exclusive possession under the Family Law Act (when no action for unjust enrichment has been started)

You have been served with forms telling you that there will be a hearing where your former partner will ask for exclusive possession of the family home (and likely the things in it). You will also have been served with documents that say that your former partner will be asking for child support and/or partner support. In these forms, you have been notified of the date of the court hearing.

The application will be heard in “chambers” or “special chambers.” For an introduction to these concepts, see the “Before you go to court: Get to know the court system” section above. For more detailed information about chambers, see the Understanding the Court Process Information Page.

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 a court process has been started 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.

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

To determine this, there are 2 issues to consider.

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

Or should you go to court 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 general rule is that a person must file their documents and go to court in the judicial centre where they live.

If this is the first application related to the breakdown in the relationship, the Applicant will have filed it in the judicial centre where they live.

However, although this may be the first application on this topic, there may already have been a different application related to the relationship breakdown. If that is the case, the Applicant will likely have filed the application in the judicial centre where that other application was made. This is because, the rule in Queen’s Bench is that once a court file is started, any additional documents must be filed in the judicial centre where the court file is located.

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 at any point you want to change the judicial centre, you will have to make a separate application for that. This application must be made 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 have questions about responding to the application, contact 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 less than 10 days’ notice will be presumed to be “prejudicial” (meaning “harmful”) to your former partner. In other words: it is best to serve your former partner 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 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.

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 former partner filed an initial application, he or she filed a special document called a “Claim.” In that Claim, your former partner as has asked for exclusive possession of the home you once shared as well as child support and/or partner support. Read the Claim carefully. You must respond to this Claim by filing a 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 former partner (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 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 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 former partner. For example: if your former partner 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 need to complete the following 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 to 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

Responding to the request for child support and/or partner 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:

More information you will need

The Queen’s Bench Process tabs of the above two Information Pages also provide all of the information you need about the other steps involved in making the application, such as:

  • getting the paperwork checked over;
  • filing the paperwork;
  • picking a hearing date;
  • serving the paperwork;
  • the kind of response you can expect from your former partner;
  • how to respond to your former partner’s response;
  • questioning on affidavit; and
  • written interrogatories

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

Starting an action for unjust enrichment

Bringing an action for unjust enrichment is not covered in the Divorce Act, the Family Law Act, or the Matrimonial Property Act. As a result, there are no specific family law forms available, and the process of applying follows standard “civil law” procedures. Therefore, you would need to use standard civil law forms to bring the action.

This is a very complex area of law. You may wish to consult a lawyer. For more information, see the Working with a Lawyer Information Page.

Consent orders

Just because a court application has been started does not mean that you will now have to resolve the issue by having your application heard in court. At any time, you can still come to an agreement and turn that agreement into a Consent Order. Having a court order makes it a little easier to take action to enforce your agreement if you need to.

If you have already started a court action (in other words, if you have already filed a Claim and any Statements for your matters, or if you have started an action for unjust enrichment), you may have to take your draft consent order to chambers to have a judge grant the order. This does not have to be done on any particular day, and you do not have to wait until your scheduled court date if you had one.

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 a consent order can ask for one.

Be Aware

In some judicial centres, you may just be able to hand the draft consent order to the court clerk, who will present it to the judge in his or her office. Contact Resolution and Court Administration Services to see what the procedure is in your judicial centre.

Web Resolution and Court Administration Services
Government of Alberta
English

If you have not yet started a court action, you can start the court action with the Consent Order. To do so, you must first get your draft Consent Order signed by a judge. The process for doing that depends on your judicial centre.

For example:

  • You may have to take the draft Consent Order to morning chambers (see the “Going to and being in chambers” section below for more information about how to do that). Once you have done that, you take the signed Consent Order to the filing counter and the clerks will open a court file with the Order; or
  • You may be able to give the draft Consent Order to the court clerks directly, who will get it to a judge for review and let you know whether the judge approved it. Once the Consent Order is signed, the clerks will open a court file with the signed Order.

Either way, there will be a filing fee. For more information about which process you need to follow in your judicial centre, contact Resolution and Court Administration Services.

Web Resolution and Court Administration Services
Government of Alberta
English

Once you have the consent order, remember to make sure that it is filed with the Court and served on the other party.

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 Statement or Reply Statement 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 of 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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