A family property date of separation case requires the court to divide property acquired during the relationship and BEFORE separation. Property acquired post separation that is not derived from property acquired during the relationship is not shared. The date of separation is also relevant for whether spouses have lived together for the required period to enable a claimant to qualify for spousal support and property division relief. The starting and end dates of a relationship in a family property date of separation case are critical in determining what property gets shared. Contact us now to get help in this tricky area.
MacLean Law family property date of separation lawyers
Our skilled family lawyers deal with medium to high net worth family property separation date cases on a regular basis and can help you focus on what the start date and end date of your relationship was to get you the proper family property date of separation dispute case result. In a recent BC Supreme Court case of McGrail v. McGrail, the court reviewed the rules to be applied to a family property date of separation case and reviewed the statute and the case law on point in deciding the date of separation is crucial for deciding if a property is divided or not. Here are the important portions of the decision for family law clients in BC:
[30] Part 5 of the Family Law Act, S.B.C. 2011, c. 25 [FLA] deals with the division of property and debt between separating spouses. Pursuant to s. 81(b) the starting point is that 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.”
[31] Subject to s. 85, which deals with excluded property, under s. 84(1), family property is all real property and personal property owned by at least one spouse on the date the spouses separate.
[34] Thus, the date of separation is critical to the determination of what constitutes family property and family debt.
[35] The claimant argues that the phrase “or order that provides otherwise” in s. 81 would allow the court to utilize a date other than the date of separation for determining family property and family debt. The claimant argues that in this case the court should utilize the date of trial. This would have the effect of eliminating the significance of the date of separation issue. It would render the interest of Mr. McGrail in the Nickyboy Trust family property or allow for compensation in respect of the New Zealand properties under s. 97(2)(c).
[36] No authority was cited for the proposition that the court has such a jurisdiction. I am not persuaded that the opening words of s. 81 would allow me to make the order suggested, in the circumstances of this case.
[37] As a result, the first step in this case must be to determine the date of separation.
B. Date of Separation
[38] Section 8(3) of the Divorce Act, R.S.C. 1985 c. 3 (2nd Supp.) [Divorce Act] reads:
8(3)(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other…
[Emphasis added.]
[39] Intention is key to the analysis. It need not be a mutually shared intention; a unilateral abandonment of the matrimonial relationship is sufficient: Dhillon v. Dhillon, [1998] B.C.J. No. 823 (C.A.), affirming the decision at trial of Bauman J., citing Lachman v. Lachman (1970) 2 R.F.L. 207.
[40] In Nearing v. Sauer, 2015 BCSC 58, Madam Justice Fleming stated (para. 54) that the case law also requires that the spouse who wishes to separate take action consistent with that intention. She referred to the following quote from Field v. McLaren, 2009 MBQB 118:
[10] Certainly I accept it is settled law that the intention of one party to separate may be sufficient to sever the relationship. Judged objectively though there must be evidence that an intention to separate was not only held, but was communicated to the other party and acted upon. The person desiring to separate must act in a way consistent with an intention to separate.
[Emphasis added.]
[41] After referring to other authorities Fleming J. stated:
I do not interpret the authorities as requiring the spouse who intends to separate to demonstrate absolute certainty that the marriage is at an end. Such a view would be inconsistent with the express language of s. 3(b)(ii) of the Divorce Act. It is enough to communicate an intention to separate, accompanied by actions consistent with that intention, assuming, of course, there is a form of physical separation between the spouses. (para. 59)
[42] While the matter is not free from ambiguity, I fix the date of separation as September 1, 2010.
If you wonder what the impact of your relationship and its breakdown has on your family property date of separation case you should get immediate legal advice from a top family lawyer at MacLean Law. We have offices in Vancouver, Surrey, Kelowna and Fort St John and you can call us toll free 1-877-602-9900.
