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Couple divorcing

It frequently occurs that spouses disagree on their date of separation. This date is important for many reasons. A few of those reasons are provided here below.

1. The date of separation can determine if the parties have lived separate and apart for one year and are eligible for a divorce.

2. The date of separation can be used to value the family property and familydebt.

3. There could be a claim for retroactive child indoor spousal support if no maintenance was paid during their separation.

The Legal Framework

One ground to obtain a divorce is if you and your spouse have lived separate and apart for one year.

Either spouse must form the intention to separate. Spouses who are separated solely because they live apart due to employment in different cities and separate residences would not qualify as living separate and apart.

Within the one year of living separate and apart, the court permits spouses to resume cohabitation for a period or periods of up to 90 days for the sole purpose of exploring reconciliation.

If during the 90 days of attempted reconciliation the parties separate for a second time, they can still rely on their first date of separation when calculating their one year of living separate and apart.

Parties can live separate and apart in the same house. The court will examine their pre-separation and post-separation behaviour to determine if they meet the definition of separation under the Divorce Act, R.S.C. 1985, C.3 (2nd Supp);

There need not be a mutual intention to separate. Only one spouse needs to prove that they intended to separate on a specific date.

The court has looked at certain traditional concepts of marriage when analysing whether the parties have separated. These include, being present at family events, sharing finances and expenses, public appearances together, if any, sexual relations, and written evidence of an intention to separate, filing of income tax returns as amarried couple or not. No one factor is determinative of the issue. 

In S.A.H. v. I.B.L. 2018 B.C.S.C. 544 at paragraph 55, the Honourable Madam Justice Sharma framed the legal test as follows:

  1. Did at least one spouse have the intention to separate?

  2. Was the intention to separate communicated to the other spouse?

  3. Was the intention to separate acted upon? .....Did one or both spouses take action that is consistent with the separation, such as:

(a) changing how they behaved with each other in public; and,

(b) changing how they behaved with each other in private.”

If you have questions about determining your separation date, call Valerie M. Little to schedule your confidential in office consultation to discuss your specific case. Ms.Little can provide you with legal advice as to how to best proceed with your family matters in your unique situation. Call her today at 604-526-3333.


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