February 14, 2016 MasterEditor

Determining the Date of Separation

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Determining the date of separation for both married and common law couples can be very important in any family law case.  For example, the date of separation is used to determine when a divorce order can be obtained on the grounds of living separate and apart for at least one year.  As another example, a common law spouse has only two years from the date of separation to pursue a spousal support claim (Section 198 (2) of the Family Law Act).  Similarly, a common law spouse that wants to pursue a claim for property division under the Family Law Act must commence a court proceeding within two years from the date of separation. 

Generally in our province a couple is considered to be separated as soon as they start living separate and apart with the intention to remain separated.  There is often no issue that the date of separation is when one of the spouses moves out of the family residence.  However, spouses that remain together in the family residence may under our laws be considered ‘living separate and apart under the same roof’. 

Recently in a decision by a judge of the Supreme Court of British Columbia referred to as O.C. v. K.C., 2016 BCSC 72, the spouses were unable to agree as to their date of separation as the husband argued at trial that the separation occurred in 2004 when the parties started to sleep in separate bedrooms but the wife said it was actually in 2008 when the husband moved out of the family residence.  As a starting point the judge considered section 3(4) of the Family Law Act that states the court may consider as evidence of separation “communication, by one spouse to the other spouse, of an intention to separate permanently” and “an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently”.  The trial judge concluded that although the parties slept in separate bedrooms starting in 2004 there were a number of other factors that the judge had to consider, which included:

(a) the husband maintained the wife on his benefit plan until 2015;

(b) the parties presented themselves to friends and in public as a couple and they holidayed together between 2004 and 2008;

(c) until 2008 the parties participated together in family activities such as shopping;

(d) there was no evidence of either spouse having a new partner prior to 2008;

(e) the husband described the other party as his wife in his income tax returns from 2004 to 2008;

(f) although the parties may have had their own bank accounts, they also maintained one joint bank account until 2008.

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