Legal Separation Cheatsheet

The following questions and answers were generated based on our experience as family lawyers and consultants over many years. The lawyers and consultants on our team have experience in advising clients, drafting separation agreements and other legal documents as well as in litigation in family court throughout Alberta. Regardless of which part of Alberta you reside in, we can help you navigate your family law issues. Whether you reside in Northern or Southern Alberta, Central Alberta, Edmonton, the Rockies, Calgary or any region between or beyond, this information applies uniformly to you.

Application of a Divorce

If you are getting divorced you must apply to the federal court in your province and you must find the proper court for your regional jurisdiction. Hiring a lawyer helps ensure that you file with the right court and on time.

Child Custody and Access

Because the primary consideration in child custody and access matters is the best interest of the child, the concept of status quo reflects that one important consideration is what the child or children have come to expect.   Generally, courts do not want to change a custodial arrangement much from the child or children are used to.

Child custody is determined based on the best interests of the child, taking into account factors such as the child's age, health, and relationship with each parent.

Court Proceedings

It is always less expensive, less stressful and advisable to have your lawyer try to negotiate with an opposing party as opposed to running contested hearings.  However, if one or both parties to a proceeding are not acting reasonably, an interim or emergency hearing on the one hand or a final disposition one the other hand, may be required to resolve matters.  In other words, if you and your spouse cannot agree on the terms of the divorce, the court may hold a hearing to resolve the disputed issues. Ultimately, the court will make a decision that is in the best interests of both parties and any children involved

Division of Property

Virtually any order of a family court can potentially be varied (modified after the fact). The factors that warrant such a variation of a family court order include but are not limited to the following: Error by the judge, misfeasance by the opposing party or a material change in circumstances. 

If an order is made by a court, it is enforceable by sheriffs of the family court. Failure to comply is a breach and there are various remedies available to parties when opposing parties breach court orders, including but not limited to a cost award against the breaching party.

If both parties act swiftly in obtaining independent legal advice, securing appraisals that are acceptable to each party and both parties and their lawyers act reasonably, a good lawyer can resolve the division of property process within a couple of weeks. On the other hand, if parties are litigious, adversarial and unreasonable, a lengthy trial can result that is expensive, time-consuming and stressful. Some trials can drag on for years. 

You should hire a lawyer to do an application before the family court, if necessary, but the first step would be to threaten such an application unless the opposing party addresses your concerns with regard to hiding assets. 

The legal term, in Canadian jurisprudence, for unreasonable disposal of assets is waste. If one spouse hides, or otherwise unreasonably disposes of assets during a divorce, the opposing party can apply to a court of competent jurisdiction, for a remedy including costs, unequal division in favor of the non-offending party in family court or potential obstruction, fraud or other charges in criminal court.

If you have a high-valued estate, the stakes are high. When the stakes are high, it is important to hire (retain) an experienced lawyer who knows how to ensure that your rights and liabilities are adequately addressed.

Any debts that were acquired during a marriage or common law relationship are generally divided 50/50.

Generally, retirement accounts, including any form of pension, are divisible matrimonial property and therefore presumptively divided 50/50 if they were acquired during a marriage or a common law relationship.

Home ownership is a bundle of rights and one stick that may or may not be included in that bundle is the right to possession of the home. If parties cannot agree on who should live in a matrimonial home after separation, they can apply n to a family court to decide. The courts consider many factors when determining whether to grant exclusive possession to one party or another to a dispute. For example, if there are children involved, generally, if one party has primary care of the child(ren), this would heavily way in favour of the primary parent to get awarded exclusive possession.

If you are in a position financially to compensate your ex-spouse for their share in the home, you can avoid having to sell your matrimonial home and you can therefore enjoy future equity without having to share it with your ex.

Generally the parties can agree on one or more people to conduct an appraisal of the matrimonial home, or they can divide the equity after the sale of a matrimonial home.

Assuming there is no marriage contract, the matrimonial home can be either liquated, or there may possibly be a buyout.

Matrimonial property is divided based on its value at the date of separation or on the date of liquidation.

In Alberta excluded property includes inheritance and sometimes business assets.

Matrimonial property is generally, any assets that were acquired during the marriage or the equity in assets that was acquired during the marriage. Matrimonial property generally includes the matrimonial home, other homes that were acquired during the marriage, all savings and investments acquired during a marriage, pensions, vehicles, furniture and more.

In Alberta, generally, matrimonial property that was acquired during the marriage is presumptively divisible 50/50 upon divorce. 

In a divorce, property is typically divided equitably or equally between the parties. Equitable distribution means that property is divided fairly, while equal distribution means that property is divided 50/50.

Division of property in family law is when parties have separated and they then either agree upon the division of the assets that they have jointly acquired or a judge makes an order for the division of their assets after a contested hearing. 


Your first step to getting a divorce should always be to consult a lawyer to understand your rights and liabilities. The next step is usually to have a lawyer obtain enough details from you about your circumstances to draft and negotiate a settlement with your spouse that protects your rights and liabilities.

In a contested divorce, the parties cannot agree on the terms of the divorce, such as property division, spousal support, and child custody. In an uncontested divorce, the parties agree on these issues, and the court can finalize the divorce quickly. Joint divorces are available in some jurisdictions (Ontario and Nova Scotia for example) while they are not available in other jurisdictions (part of New Brunswick for example). A joint divorce involves both parties filing for divorce together whereas an uncontested divorce involves one party – the petitioner or claimant – and the other party does not respond after they are served and the petitioner or the claimant then completes the application for a divorce order.

If you have been separated from your spouse for over a year, or if your relationship involved cruelty or adulty, the length of time it would take to get a divorce depends on the speed with which your lawyer can draft your documents as well as the complexity of the issues involved.

The cost of divorce is affected by whether the parties are in agreement about the following factors: Child custody and access (if applicable), division and possession of the matrimonial property and spousal support. Generally, a simple uncontested divorce is around $2,000 to $2,500 in legal fees and $600 to $700 in court costs.

Getting a divorce requires various legal formalities including drafting various legal documents (affidavits, notices, financial statements including property and income statements and more) that are not intuitive to lay people. Generally, a layperson cannot successfully complete a divorce for themselves. You need to retain a lawyer to get a divorce. It is advisable to hire a lawyer to help you navigate the divorce process and protect your legal rights.

To get a divorce, you first must have a separation for at least one year unless there is cruelty or adultery, in which case you may be able to get a divorce quicker. However, the work required to get a divorce takes time so it is important to consult a lawyer ASAP if you want to ensure a speedy divorce. 

We have a no-fault divorce system in Canada. Neither party needs a reason to get a divorce in Canada.

Generally, you need to be living separately and apart from your spouse for 12 months in order to get a divorce in Alberta (and the rest of Canada).

Generally, in order to get a divorce in Canada, you need to be resident in a Canadian Province for at least 12 months prior to your application. 

A divorce is a legal termination of a marriage by a court, which ends the legal relationship between two spouses.

Family Law

The Family Law Act (Alberta), the Divorce Act (Federal) as well as case law derived from Alberta courts and other courts, serve the basis of family law in Alberta.

Marriage Contracts

Different forms of contracts in family include prenuptial agreements, cohabitation agreements, separation agreements and postnuptial agreements. Every presumption in family law can be contracted away except for child support. It is important to discuss how marriage contracts and other agreements can help ensure that your rights and liabilities are properly addressed.

Mediation in Family Law

In our experience, we find that mediation is a lower percentage tool for addressing family law-related issues than a negotiated settlement.

Mediation involves two parties to a family law matter presenting their facts to a mediator and at the conclusion, a mediator renders a non-binding recommendation with regard to how to resolve the differences between the parties. Non-binding means it is not the same type of decision as a judge would render, and the parties can each decide whether or not to accept the recommendations of a mediator.

Respondent of Divorce Proceeding

Across Canada, the provinces generally impose a deadline of between 20 and 30 days.

If you were served a petition for divorce there are strict deadlines within which you need to provide a response. Failing to provide a response on time can lead to negative consequences for you as the respondent including costs or possibly adverse findings against you that effect your rights and liabilities in a divorce proceeding. If you were served you should contact a lawyer right away.


Generally, laypeople who have no experience in drafting legally binding contracts are not capable of drafting a valid separation agreement without the help of lawyers.

A separation agreement is a legally binding contract between separating parties. It is one form of what is commonly referred to as a marriage contract. A separation agreement determines the rights and liabilities of the parties. If you are looking to separate from your partner after a common law relationship or a marriage, you should speak to a lawyer about drafting a separation agreement and have your spouse sign one. 

Sometimes, judges accept that parties can live at the same address but still qualify as being separated.  If for example, one ex-spouse lives upstairs and the other spouse lives in the basement, the two parties do not interact with other or share utilities, and there is a separation of finances and expenses, this may qualify as a legal separation for divorce purposes.

Normally, to qualify as separated for the purposes of calculating your date of eligibility for divorce, parties need to actually live in separate residences. There are some exceptions to this general rule, however.

Generally, your separation date is the date you cease to cohabit with your spouse. This applies to marriage and common law relationships.

Separation Agreements

This is a core attribute of our approach to addressing family law related issues for clients throughout Alberta. The negotiated settlement involves hiring a lawyer to negotiate a resolution with an opposing party to a family law matter, including division of property, spousal support, child custody and access or any other issue related to family law in Alberta.  A negotiated settlement normally involves your lawyer drafting a separation agreement, or custody and access agreement. 

Service of Divorce Documents

If you do not know where your ex-spouse resides, service may be difficult. You should give any information to your lawyer that may help them in making contact with your spouse including but not limited to the following: Last known address of your ex-spouse, relatives, friends, previous workplaces, social media information and any contact numbers that may be helpful. If you cannot find your ex-spouse despite your best efforts, you need to demonstrate to a judge that you tried everything possible and if you are successful you can apply for an order for substituted service. An order for substituted service is an order from a judge in a family court that allows you to treat the respondent as though they were served so that you can get a divorce without actual service.

When the claimant or petitioner’s divorce documents are complete, their lawyer normally engages a process server to personally serve the respondent. Personal service is required by the court and the process server drafts a document that certifies that the respondent was personal served as well as the date of service.

Spousal Support

As long as your inheritance was not mixed with matrimonial property, you can keep your inheritance.

Yes, you can seek and receive spousal support after your divorce is finalized. However, it is advisable to resolve matters of spousal support, division of property and all other issues related to a separation prior to finalizing a divorce and some judges will insist that parties resolve such issues prior to issuing a divorce order.

If you make a formal demand for spousal support through your lawyer and you provide a reasonable period of time and effort into a negotiated settlement, you may be able to seek retroactive spousal support from the day of your formal demand. Your argument that you should receive retroactive spousal support is strengthened if the opposing party caused delay and/or failed to make reasonable settlement efforts. 

Retroactive spousal support is spousal support that is payable as a result of previous months or years of payments that were missed by the payor and were not missed as a result of the actions or inactions of the receiver.

Interim spousal support refers to when the entitled spouse receives spousal support pursuant to an interim hearing, prior to having a trial based on the merits of the outstanding issues.

The most cost effective and time-efficient way to start getting spousal support is from your ex is to get a lawyer to negotiate a separation agreement.

As soon as you are legally separated, you can start receiving spousal support. 

My Support Calculator is a website that aims to give parties an idea of their spousal support entitlements. For many couples, a general rule of thumb is that spousal support is approximately half of the net difference between the current incomes of the two parties for the duration of the marriage. However, understanding the factors involves in arguing for the higher income earner to reduce or eliminate their liability with regard to spousal support as well as the factors involved in arguing for the lower income earner to maximize their spousal support is very complex.

In Alberta, non-compensatory spousal support is s based on the needs of the lower income earner rather than sacrifices that were made during the relationship.

In Alberta, compensatory spousal support arises based on one spouse being deprived while the other was enriched and aims to compensate the deprived party.

In Alberta, spouses are permitted to contract out of spousal support entirely or make a Marriage contract specifying exactly what the parties agree to with respect to spousal support and the other issues that arise upon separation of spouses.

Spousal support entitlement could be an entitlement based on one of the following three arguments:  1. Entitlement by Contract; 2. Compensatory spousal support or; 3. non-compensatory entitlement.

Alimony, or spousal support is financial support paid by one spouse to the other after a divorce to help the recipient spouse maintain their standard of living.

 In Alberta spousal support is payable by the higher income earner to the lower income earner after the breakdown of either a common law relationship or a marriage. 

Uncontested Separation

If both parties to a proceeding agree on how matters should be resolved (for example, they agree on how property should be divided) one party should have a lawyer draft their agreement in a fashion that would be accepted by the family court. It is also advisable that the other party obtain independent legal advice in writing (ILA). Obtaining an ILA is important because it helps ensure that the agreement is not thrown out by a reviewing court, and it is also important that each party understands their legal rights and liabilities.