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Wedding bells won’t be ringing: Alberta’s new Family Property Act

As of January 1, 2020, Alberta’s new Family Property Act will be in force.  The effect of this Act will be to bring Adult Interdependent Partners who separate on or after January 1, 2020 under the same property sharing scheme as married couples.  Historically, we relied on the equitable doctrine of unjust enrichment when determining how to divide the property of unmarried couples –  there was no set formula, and the cost of litigating these files was significant due to this.  Case law was varied, and very fact-specific. The view of the court was that couples make the conscious choice to marry (and thereby opt-in) to our property sharing legislation and this should not apply to those who do not make this same choice. That has now changed. 

The first thing to clarify is that in Alberta we do not refer to couples as being “common law”, but rather, Adult Interdependent Partners (AIPs for short).  A couple would qualify as being AIPs under the Adult Interdependent Relationships Act (AIRA) if they have lived together in a relationship of interdependence:

  1. For a continuous period of at least 3 years; or
  2. In a relationship of some permanence and have a child together by birth or adoption; or
  3. The two people have entered into an agreement to be AIPs in accordance with the regulations.

To be clear, you do not automatically qualify as an AIP if you live with someone for 3 years or have a child together, there is still the requirement of being in a “relationship of interdependence”, which is a defined term under the AIRA and exists where two people outside of marriage:

  1. Share one another’s lives;
  2. Are emotionally committed to one another; and
  3. Function as a domestic and economic unit, of which the non exhaustive list of relevant considerations includes:
    • Whether or not the persons have a conjugal relationship;
    • The degree of exclusivity of the relationship;
    • The conduct and habits of the persons in respect of household activities and living arrangements;
    • The degree to which the persons hold themselves out to others as an economic and domestic unit;
    • The degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another;
    • The extent to which direct and indirect contributions have been made by either person to the other or to their mutual well-being;
    • The degree of financial dependence or interdependence and any arrangements for financial support between the persons;
    • The care and support children; and
    • The ownership, use and acquisition of property.

It goes without saying that this change is a significant departure from our previous approach.  If you would like further information about how these changes might affect you please contact us.  If you are thinking about moving in with your partner and want to opt out the new property sharing scheme under the Family Property Act, our lawyers can assist you with drafting and tailoring a Cohabitation Agreement to your specific needs.