-We’ve lived together off and on for 5 years, does this Act apply to us?
-I worked away for 6 months during our 3 years together, does this matter?
-He stayed with me most weekends for 3 years, are we living together?
Maybe;! Maybe not!
The Family Property Act (Alberta) applies to married couples and adult interdependent partners, who separate after January 1, 2020. It sets out the rules for dividing property and the timelines to apply.
A threshold question for non-married couples is whether they qualify as ““adult interdependent partners”, and therefore within the scope of the Act.
It is important to obtain legal advice on your specific situation early into a separation, or before moving in together, to understand if this Act applies to you and where the grey areas exist.
Adult interdependent partner is defined in the Adult Interdependent Relationships Act (AIRA). In simplified terms, a person is an adult interdependent partner of the other person if:
a) they have lived with the other person in a relationship of interdependence
(i) for a continuous period of not less than three years; or
(ii) of some permanence, if there is a child of the relationship by birth or adoption
Or:
b) by adult interdependent partner agreement.
This means that where there is no child or agreement, there are 2 key factors to analyse: the nature of the relationship and the length of cohabitation.
A “relationship of interdependence” is an unmarried relationship where the 2 people share one another’s lives; are emotionally committed to one another, and function as an economic and domestic unit. (AIRA s1(f))
The AIRA states that all circumstances of the relationship may be taken into account (and several factors are listed) in determining whether this standard is met.
Where the legal “grey areas’ can arise include:
– does the relationship meet the “interdependence” standard?
-when did the relationship of interdependence start?
-when did it end?
-what does “living together” and “continuous” encompass?
For example, what if one person is living away from the home for work, illness, needs of a child, education, travel, looking after an aging parent?
There have been specific fact scenarios where the court has found that “living together” can be broadly interpreted – and not continuously under the same roof.
The recent 2024 Alberta King’s Bench case explains the test as:
1) Did the parties cohabit in the same residence for a continuous three-year period?
2) If not, did the parties have a mutual intention to cohabit in the same residence for a continuous period which period was interrupted by external circumstances such as employment, academic, financial or health care obligations or requirements.
The case law by the courts is evolving in this area, and the facts of each case are crucial.
If a couple does meet the definition of adult interdependent partner, the Act will apply (subject to deadlines). If it does not apply, there may be claims under the general law of unjust enrichment, or other statutes.
For more tips, see 9 Tips for Separating Spouses or talk to our lawyers to get information and advice.
This is general information only and is not legal comments or advice specific to your situation.
– Written by Ceri Chwieros
