Separation in Alberta: Living Apart After a Relationship Breaks Down
In Alberta, separation occurs when a relationship breaks down and a couple begins living separate and apart, which is generally understood to mean when a couple ceases to have any emotional, sexual, or psychological connection with one another. This can apply to both married and unmarried partners, and in some cases, spouses may remain in the same home due to financial or practical considerations.
In Canada, there is no such thing as a “legal separation;” however, the date of separation is important, as living separate and apart for at least one year is one of the grounds for divorce. A divorce is the legal process by which a court formally ends a marriage.
When starting a divorce proceeding, the court requires information about the date of separation—meaning when the parties began living separate and apart. Separation is generally understood to occur when spouses end their emotional and marital relationship, even if they remain under the same roof.
Canada’s Divorce Act
The Divorce Act (Canada) is federal legislation that only applies to married couples who have divorced or who have applied for a divorce. Under the Divorce Act, (Canada), a court of competent jurisdiction may grant a divorce on the ground there has been a breakdown of the marriage, if:
- the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
- the spouse against whom the divorce proceeding is brought has, since celebration of the marriage:
- committed adultery; or
- treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
The Divorce Act (Canada) deals with:
- decision-making and parenting arrangements for children;
- child support; and
- spousal support.
Most divorce actions proceed on the basis that the parties were living separate and apart at the commencement of the divorce proceedings, and that they have continue to remain separate and apart for at least one year immediately preceding their divorce being finalized.
In practice, this means either spouse can start a divorce action at any time following the start of the parties’ separation; however, the divorce cannot be finalized until the parties have been separated for at least one year.
If the spouses attempt to resume cohabitation, but the attempt to resume cohabitation is less than 90 days and the attempt fails, the attempt to reconcile will not be held against them, and the initial date of separation remains the separation date. In situations where the spouses resume cohabitation and their attempt to reconcile exceeds 90 days, any future intention to live separately and apart will be deemed the new separation date.
The Family Property Act (Alberta) allows for the division of property (assets and debts) acquired by spouses during their marriage and includes the division of any property acquired during the period the spouses lived together prior to marriage.
A divorce action can be started at any time by the filing a Statement of Claim for Divorce, which must be personally served on the other spouse; however, when there is a dispute over property acquired during the marriage, or property acquired when the parties lived together prior to marriage, it is necessary to file and serve a Statement of Claim for Divorce and Division of Family Property on the other spouse.
An uncontested divorce is one where decision-making, parenting, and support have already been settled, usually by way of a Separation Agreement.
Free Consultation
If you are thinking about separating from your spouse, and need information about the divorce process and your rights, please contact us for a free consultation at: (403) 288-0009 or by email at murray@bodnaruklaw.com