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Gray Divorce in Alberta: Considerations and Next Steps

Gray divorce, also written grey divorce, refers to divorce later in life. It can involve possession of the family home, spousal support, CPP credit splitting and an employment pension. Each issue has its own rules.

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Which Law Decides What

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    The family home

    Possession of the family home is dealt with under Alberta's Family Property Act, which gives the Court powers over who may stay in the home, on what terms, and for how long.

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    Spousal support

    Spousal support is decided under its own provisions, and which Act those provisions come from depends on the matter.

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    Canada Pension Plan credits

    Canada Pension Plan credits are federal. The contributions made while you lived together are divided by the federal government under the Canada Pension Plan, not under Alberta's property legislation, and that division is a separate question from dividing property between you.

The Family Home

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Alberta's Family Property Act gives the Court powers over possession of the family home, and they are available to a spouse or an adult interdependent partner alike.

On application, the Court may give one of them exclusive possession of the family home, may direct that one of them be evicted from it, or may restrain one of them from entering or attending at or near it.

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    The Court may also give possession of as much surrounding property as is necessary for the use and enjoyment of the home, subject to any conditions and for any period it considers necessary, and an order may be varied on a later application.

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    In exercising those powers, the Court is directed to have regard to four things: the availability of other accommodation within the means of both parties, the needs of any children residing in the family home, the financial position of each, and any order a court has made about the property or about support or maintenance.

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    Where such an order is made and the home is real property owned or held by one or both of them, the order may be registered with the Registrar of Land Titles. Registration is permissive rather than automatic, and a registered order carries a consequence: the person whose interest it is registered against may only dispose of or encumber that interest with the written consent of the other or under an order of the Court.

Family property division in Alberta.

Spousal Support

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Spousal support is a separate question from dividing property.

It is decided under its own provisions rather than as part of the property arrangement, and which Act those provisions come from depends on the matter.

Spousal support in Alberta

CPP Credit Splitting

The Canada Pension Plan contributions you and your spouse or common-law partner made during the time you lived together can be equally divided after a divorce or separation. The federal government calls this credit splitting.

Credits can be divided even if one of you made no contributions to the CPP. The division is permanent, and it may affect the amount of any current or future benefits for both of you.

Eligibility varies depending on when you divorced or separated, and on whether you were married or in a common-law relationship, so the conditions that apply to you depend on both.

An older couple filling in a questionnaire at a table

Periods that cannot be split include:

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    a year when the couple's total pensionable earnings did not exceed twice the Year's Basic Exemption

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    a period before one person reached 18 or after one reached 70

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    a period when one person received a CPP or Quebec Pension Plan retirement pension, or was considered disabled for CPP or QPP disability-benefit purposes

  • The federal government says a spousal agreement generally does not prevent a credit split - but that agreements entered into before 4 June 1986, and spousal agreements in Quebec, Saskatchewan, British Columbia and Alberta where a provincial law allows couples to agree not to split CPP credits, can prevent one.

  • Alberta is one of the four provinces named there. What that provincial law says is a question for a lawyer.

An Employment Pension

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How a Pension Is Divided

For an employment pension covered by Alberta's Employment Pension Plans Act, that Act governs division of the benefit through a family property order or agreement. Other pension plans can fall under different legislation; ask the plan administrator which rules apply to your plan.

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    Applicable division rules

    The Act is explicit about which rules win. Despite the Family Property Act or any other rule of law or equity to the contrary, a family property order or an agreement cannot divide or distribute a pension benefit except in a way that complies with that Act's relationship-breakdown provisions.

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    Other property

    That does not stop a court dividing the rest of your property in a way that takes account of how the pension is being dealt with. It limits how the pension itself can be split.

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    Agreement requirements

    An agreement that divides a pension benefit has to meet the Family Property Act's requirements for an agreement and be enforceable under that Act's acknowledgement provision, so the formalities that apply to a property agreement apply here too.

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    Plan administrator

    The order or agreement also has to be filed with the plan administrator, which means served on the administrator, and a person's entitlement to a benefit is subject to whatever has been filed.

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    Limit on the member's reduction

    There is a ceiling on the split. The division cannot reduce the member's share of the total benefit by more than half of the actuarial present value of the benefit earned during the period the two of you were accruing it together.

How a Lawyer Helps, and What to Do Next

A family lawyer advises on what the Family Property Act would otherwise provide about the home and the rest of the property, explains how the possession provisions apply to a particular situation, and drafts or reviews the terms of an agreement.

Contact THEBIL Law to discuss a later-life divorce and the questions you want to address. You can submit a consultation request at any time, and the office will be in touch to arrange a meeting.

THEBIL Law, 5920 Macleod Trl SW Ste 720, Calgary, AB T2H 0K1, Canada. Call 403-457-3128.

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