Alberta’s Family Property Act starts from a simple position, that property acquired during the relationship is divided equally, and then makes a series of exceptions that decide most real cases. Understanding which category each asset falls into, and when it is valued, is worth more than any argument about fairness.
Who the Act covers
Since January 1, 2020, the Family Property Act has applied to adult interdependent partners as well as married spouses. A couple becomes adult interdependent partners after three years living together in a relationship of interdependence, or sooner where there is a child and the relationship has some permanence, or by signing an adult interdependent partner agreement. Before that change, unmarried partners had to rely on unjust enrichment claims, which were slower and far less predictable.
The three categories
Exempt property is not divided, and it includes property owned before the relationship began, gifts from third parties, inheritances, damages for personal injury and certain insurance proceeds, and the spouse claiming the exemption has to trace it, which is why it is lost so often when an inheritance is paid into a joint account and spent.
The increase in value of exempt property during the relationship, property acquired after separation and a few other categories are divided as the Court considers just and equitable, with no presumption of equality. Everything else, which for most families means the home, the accounts, the vehicles, the pensions and the debts accumulated during the relationship, is divided equally unless the Court finds that equal division would not be just and equitable having regard to the factors the Act lists.
When property is valued
Unless the parties agree otherwise in writing, property is valued at the date of trial rather than the date of separation. Few people expect that, and it can change the result considerably. A home that rises in value between separation and trial brings the increase into the pool, and so does a business that grows, whichever spouse has been running it. It is one of the reasons to settle sooner rather than later where values are moving.
The family home, pensions and businesses
The Act allows a spouse or partner to apply for exclusive possession of the family home, with the other party ordered out and restrained from returning, weighed against the availability of other accommodation, the needs of the children living there and each party’s finances. That is a possession order and does not decide who eventually keeps the home.
Pensions are family property and are divided under their own rules, with Alberta-regulated plans divided at source under the pension legislation and Canada Pension Plan credits split separately. A business interest is valued, which generally means a professional valuation, and the questions of retained earnings, shareholder loans and whether the business can be sold at all are usually where the real money is.
Agreements and deadlines
Spouses and partners can contract out of the Act, before, during or after the relationship, but the agreement is enforceable on property only where each party has acknowledged before their own lawyer, apart from the other, that they understand its nature and effect and are signing voluntarily. An agreement without that acknowledgement can still be looked at by the Court, but it does not bind.
A claim can be brought after separation without waiting for a divorce, but the Family Property Act sets short deadlines. For married spouses, a claim made with or after a divorce must be started within two years of the divorce judgment, and a claim that rests on the separation alone must be started within two years of the date the spouses separated, or within one year of the transfer if that comes sooner where one spouse has given property away to defeat the claim. For adult interdependent partners, the two years run from the point the applicant knew or ought to have known the relationship had ended. Missing the window can mean losing the claim entirely.
Where the firm can act
Advice, disclosure, valuation strategy and property agreements are available to anyone in Alberta. Contested property applications are taken only where the file proceeds through the Calgary Courts Centre, which covers Calgary and the surrounding communities in the Calgary judicial district. The practice is virtual, so meetings happen by video, telephone and email, with in-person meetings available on request in Cochrane or in Calgary.
If property needs to be divided, or you have been asked to sign an agreement about it, call (587) 328-3328.
Frequently Asked Questions
Property acquired during the relationship is presumptively divided equally, but exempt property is not divided at all, and the increase in value of exempt property is divided as the Court considers just and equitable rather than equally.
It is exempt at the value received, provided you can trace it. An inheritance paid into a joint account and spent on the family is usually lost. The increase in its value during the relationship is divisible on a just and equitable basis.
Yes. Since January 1, 2020, adult interdependent partners have the same rights under the Family Property Act as married spouses.
At the date of trial, unless the parties agree otherwise in writing. Increases and decreases between separation and trial come into the calculation.
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