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Disinherited Will Lawyer Vancouver

How do you Avoid Vancouver Separation Date Mistakes? In today’s blog, Rana Yavari will help you avoid Vancouver separation date mistakes by explaining why you need to pay attention to this important date to ensure your family law rights and divorce claims are properly protected. There are strict time limits relating to the date of separation so read this blog carefully! Contact our Vancouver family lawyers today to ensure you are protected.

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  • How is the parties’ date of separation determined when there is a contentious issue?

In some cases, it will be quite clear when a Vancouver family separation occurs. But things may be more complicated when spouses remain in the same household post-separation or experience periods of reconciliation.  There are financially motivated reasons why a spouse may want to manipulate the date of separation such as delaying the separation date to increase his or her share of family property and hastening separation to avoid responsibility for family debt. Sometimes it is a case of no one wanting to leave the family home or a lack of cash flow to set up 2 new residences. Where there is ambiguity and disagreement about the date of separation, no one factor is independently conclusive of separation and the court will need to determine the separation date. If the parties separated before residing in a marriage-like relationship for 2 years or fail to make a claim within 2 years of separation in a marriage-like relationship, property and spousal support claims are barred. You can see why it is critical to avoid Vancouver separation date mistakes.

  • The intention of the parties to separate

A physical separation is not necessary; parties can live in the same residence and still be considered separated. To determine the date of separation, the court may look at the pre-and post-separation behaviour of the parties. The intention of the parties is key to the analysis of a date of separation. It need not be a mutually shared intention; a unilateral abandonment of the matrimonial relationship is sufficient.

Avoid Vancouver Separation Date Mistakes – What factors Does The Court Look At?

The determination of the parties’ date of separation is a very fact-specific exercise. The following questions, framed in the form of a test, useful in determining the date of separation are frequently applied:

  • Did at least one spouse have the intention to separate?
  • Was the intention to separate communicated to the other spouse?
  • Was the intention to separate acted upon? In other words, using generally accepted characteristics of marriage did one or both spouses take action that is consistent with the separation, such as:

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

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

When the parties dispute the date of separation, the court’s analysis will also focus on the generally accepted characteristics of marriage including the following:

(a)   intention to remain married looking at documents and hearing from witnesses;

(b)   having sexual involvement with each other;

(c)     carrying on activities in public as a couple;

(d)    sharing financial resources as a couple; and

(e)   sharing significant family events as a couple.

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The court will also consider a range of other factors, including a clear statement by one of the parties of his or her desire to terminate the relationship. Sexual involvement, or lack thereof, is not conclusive. A couple of recent cases give some idea of the principles applied which you can follow to avoid Vancouver separation date mistakes.

In finding that the parties’ relationship did not include many of the “generally accepted” characteristics of a marriage, the court in Nearing v. Sauer, 2015 BCSC 58 noted that:

[57]    they led relatively separate lives, they did not integrate their finances, they had little, if any, social life together and most family events did not involve the respondent.” The filing of income tax returns identifying a party as married, was a factor for consideration, but not determinative of the issue.

The issue of the date of separation was illustrated in Quicho v. Ranjibar 2018 BCSC 2135. The evidence regarding the separation date was notably lacking and the court considered the evidence as a whole to determine the date of separation:

[2]        There is also an issue about the date of separation. The respondent-husband says they separated in October 2010, while the claimant wife says separation did not occur until October 2013.

[15]        The wife testified that the husband evicted her from the residence in October 2010, and she departed. The timing coincides with the husband taking possession of the Station Hill Drive condominium. Thus at this point in time the parties seem to have separated. The question is whether they reconciled later. The parties agree that they resided separately for some months after October 2010, until April 2011 when the wife moved into the Station Hill Drive condominium.  As noted, the husband states this was just a matter of convenience, in order to save rent, and given that he was absent in Iran for much of the time anyway. The wife did not provide details to suggest that the parties consciously decided to reconcile at that time, thus the husband’s evidence that her move was simply a matter of convenience seems credible. In their evidence the parties provided little or no detail as to factors such as their private relations, including intimate relations, or how they behaved publicly after April 2011.  The husband testified that physically they resided together, but “mentally” they were no longer a couple. I interpret the word “mentally” as translated by the interpreter to mean that the parties were not a couple emotionally. His testimony included a hint that the parties did not have intimate relations since 2008. The wife did not testify that sexual relations continued after 2010. From this I infer that the parties have not had a sexual relationship since 2010, or sometime prior to that.

[16]        Ambiguously, the husband testified that he offered to take the wife on family vacations after 2010, but she declined, making excuses.  This is ambiguous in that the husband made the offer or offers, suggesting some continuity of relations, but on the other hand, she declined. The common ground is that there were no joint family vacations.  The wife provided no detail about the discussion she says they had in October 2013, which she identifies with their separation.  In the husband’s 2010 Canadian income tax return he indicated that he was separated. In 2012 CRA challenged this, and the husband submitted third party verification letters to CRA in response.  The wife also represented to CRA that she was separated, and had been separated since August 2010. In a letter to CRA in April 2015 she indicated that they separated in 2010, and that she moved to the condominium because the children were alone there, and to save rent.  She said that when the husband is in B.C., she usually resides with a friend.

[17]        In summary, on the whole of the evidence, I conclude that the parties separated October 1, 2010, and did not reconcile thereafter.  There is no persuasive evidence of a reconciliation after October 1, 2010.  To the extent they continued to cohabit, it was for reasons of mutual convenience.  The date of separation is therefore October 1, 2010.

The Key Takeaway

Spouses may be separated despite continuing to live in the same residence. Living arrangements of this type are common, usually as a temporary stop-gap measure while estranged spouses finalize their matrimonial property settlements. To determine the date of separation, the court may look at the pre-and post-separation behaviour and intention of the parties.

We recommend that you avoid Vancouver separation date mistakes by properly papering the date of separation in writing preferably with the assistance of a lawyer and in front of witnesses to save time, aggravation and money.

Contact any of our Vancouver family lawyers to ensure you have the date of separation properly calculated.