Am I Separated?

Harm Dhillon

Can Just One Partner Claim Separation in Alberta?

Yes. As long as the individual meets the legal test for separation, their spouse/partner does not need to consent or agree. Legal separation does not require a formal process such as filing paperwork, but there are certain conditions that must be met in order to establish the date of separation.

Legally, you’re considered separated when you and your spouse live “separate and apart” and at least one of you intends to end the relationship.

For married couples, the Divorce Act outlines what “separate and apart” means in s. 8(3). This section says a couple is considered to be living “separate and apart” as soon as they stop living together and at least one of them wants to live separately (even if the other doesn’t agree). This is also the case in s. 10(1) the Adult Interdependent Relationships Act which states you will be considered a former partner if you are living separately and apart for more than 1 year or if one/both partners intend that the relationship does not continue.

Due to the unique and varied relationships that are governed by family law, the court will look at factors beyond your subjective intention to live separate and apart.

These factors include, but are not limited to:

• When all communication ceased (can be unilateral)
• Where the parties were sleeping and eating
• If the parties shared domestic/household tasks
• How the parties presented themselves to their community (family and friends), society (were they attending social functions together as a couple?), and the government (how were they filing their taxes?)
• The nature and content of the parties’ communications (texts, emails, calls, etc.)
• Whether the parties had a valid reason to continue living in the same home

Why is the date of separation important?

It becomes important when considering the implications under the Family Property Act (“the Act”). For married couples, even if the date of separation is not considered the date of valuation for property division, it can become relevant when pursuing Alternate Dispute Resolution (ADR) or when discussing property gained and debts incurred between the date of separation and the date of valuation (trial date).

For both married and adult interdependent partners, the date of separation is important as they may be entitled to the just and equitable distribution of property under s. 7(3) rather than the default of equal.

This date is also relevant when considering the limitation periods under the Act. Applications for family property orders must commence within 2 years after the date that spouses separated (s. 6(3)(a)) or 2 years after the applicant knew, or ought to have known that they became a former adult interdependent partner (s. 6.1(2)(a)).

Conclusion

A trusted family lawyer can offer essential guidance and representation, helping to protect your interests while respecting the rights of everyone involved. If you have additional questions about separation or property division, contact Vogel’s family law lawyers today for a consultation.