As BC divorce, separation and relationship breakdown lawyers we know that the exact SEPARATION date when married or common law partnerships breakdown has critical implications for determining both family property entitlement and division as well as for spousal and child support liability, amount and duration. Spouses will often disagree on both the start dates for and their separation dates in their relationship because these dates impact spousal and child support and property division. How does one prove or disprove the date of separation?
Call our top rated BC family lawyers to discuss how factors such as shelter, sexual and personal relationships, personal spousal services, socializing, financial support and the birth of children can impact whether you are a couple or separated toll free at 1 877 602 9900.
Our new BC Family Law Act sets the date of commencement of the relationship and the date of separation as the critical event for purposes of triggering property entitlement and the date of separation starts certain support limitation dates running.
Section 81 states:
(b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.Spouses and relationships between spouses
3 (1) A person is a spouse for the purposes of this Act if the person
(a) is married to another person, or
(b) has lived with another person in a marriage-like relationship, and
(i) has done so for a continuous period of at least 2 years, or
(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.
(2) A spouse includes a former spouse.
(3) A relationship between spouses begins on the earlier of the following:
(a) the date on which they began to live together in a marriage-like relationship;
(b) the date of their marriage.
(4) For the purposes of this Act,
(a) spouses may be separated despite continuing to live in the same residence, and
(b) the court may consider, as evidence of separation,
(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and
(ii) an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.
The classic 2000 British Columbia case of Dediluke discusses a date of separation for parties who lived in separate residences for decades:
[62] The following case quotes are useful in determining whether the parties were legally living separate and apart. “…there may be physical separation of the parties without there being a finding that the parties are living ‘separate and apart’.” Rather there must be an intention to end the matrimonial relationship Dorchester v. Dorchester (1971), 3 R.F.L. 397 (B.C.S.C.) at pg.398..
[63] “[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words ‘separate and apart’ in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown.” Herman v. Herman (1969), 3 D.L.R. (3d) 551 (N.S.S.C.).
[64] “[T]he words ‘living separate’ connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other.” Hills v. Hills (1969), 1 R.F.L. 236 (N.S.S.C.).
[65] “While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, especially in cases where the separation may have been brought about … by enforced hospitilization … all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown” McDorman v. McDorman (1972), 11 R.F.L. 83 (N.B.S.C.) at pg.85.
[66] In the present case, although the parties have not lived together for a lengthy period of time, the evidence proves, on the balance of probabilities that these parties did not separate (in a legal sense) until Mrs. Dediluke commenced these proceedings. This act demonstrated a resolve on Mrs. Dediluke’s part to cease the matrimonial relationship.
[67] Prior to that time, the evidence established that the parties had an ongoing commitment to each other and their matrimonial relationship. The parties did not re-establish co-habitation as man and wife after Mrs. Dediluke recovered from her mental illness because Mr. Dediluke never recovered sufficiently from his mental illness to make cohabitation possible. The intolerable conditions in which he insisted on living were symptoms of his ongoing mental illness. These living conditions were not driven by poverty. Even when he had the money he would not let people do the necessary repairs. His refusal to allow the repair of the roof was an example of his ongoing mental illness.
Call us now to discuss how factors such as shelter, sexual and personal relationships, personal spousal services, socializing, financial support and the birth of children can impact whether you are a couple or separated.
