Our top-rated COVID 19 Coronavirus Separation Date Lawyers at our 6 offices across BC and in Calgary Alberta are working overtime dealing with COVID 19 Coronavirus family law disputes. We have established a COVID 19 family lawyers information site with several articles on family violence, support issues, urgent child parenting time issues and the like. Today, Fraser MacLean, winning counsel on Beninteso, explains how Courts determine if a separation has occurred.
A huge issue during social isolation is deciding if parties who are forced to stay at home remain in a committed marriage or marriage-like relationship. Our COVID 19 Coronavirus Separation Date Lawyers know that our family laws allow for a declaration that parties can be separated in the same home due to financial or other reasons. In today’s blog, we will focus on the need for proving intention coupled with objective actions to separate even if you are forced to isolate in the same home with your ex-spouse.
A new Appeal decision in Der Woon v Zadorozny 2020 BCCA 95 dismissing a husband’s family property division and support claim for being barred by a 2-year time limit, points out that intention to separate and objective factors related to that intention to separate is key.
COVID 19 Coronavirus Separation Date Lawyers 1 877 602 9900
Section 3, of our Family Law Act deals with parties remaining in the same residence:
3 (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.
Our COVID 19 Coronavirus Separation Date Lawyers note the following legal analysis sets out the rules to decide if you are separated or not:
[5] After referring to the applicable provisions of the Act, the chambers judge succinctly analyzed the case as follows:
[18] Although the claimant left the family home on or about September 1, 2014, I have concluded that the parties separated on June 17, 2014. (C.P v. K.W.A., 2018 BCSC 332 (CanLII) and Nearing v. Sauer, 2015 BCSC 58).
[19] On June 17, 2014 the respondent clearly expressed her intention to end the relationship of the parties and her actions following her expressed intention were entirely consistent with her statement that she intended to separate. Although in the same residence, they talked infrequently, they slept in separate beds and they stopped socializing as a couple with friends or family. Shortly after her declaration to the claimant, she announced their separation to her father, her ex-husband and her co-workers. She also took steps to deal with her financial circumstances as she was unemployed at the time.
[20] In my view, it was not incumbent upon the respondent to take steps to have the claimant removed from her house. She acted fairly and reasonable in allowing him to stay until September 1, 2014 so that he could find another place to live. A meeting of the minds is not required as to the date of separation. The claimant did not testify that the respondent did anything to lead him to believe that the relationship continued after June 17, 2014. Quite the contrary, a few days after her declaration that their relationship was over she said she had never been more resolved about a decision.
COVID 19 Coronavirus Family Law Disputes
The Court of Appeal then provided a list of factors that guide COVID 19 Coronavirus Separation Date Lawyers and their clients:
[9] There is no suggestion the chambers judge misdirected himself. The factors he considered closely mirror the factors enumerated in Nearing v. Sauer, 2015 BCSC 58 and applied in C.P. v. K.W.A., 2018 BCSC 332. In Nearing, Fleming J. wrote:
[56] … Typically when the parties dispute the date of separation, the court’s analysis focuses on the generally accepted characteristics of marriage including the intention to remain married, having sexual involvement, carrying on activities in public, sharing financial resources and sharing significant family events: [Sachdeva v. Sachdeva, 2013 BCSC 313] at para. 87. 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: Newth v. Booth, 2011 BCSC 317 at para. 17.
[10] I agree with that description of the focus of the court’s analysis. The factor relied upon by the appellant, the contribution to household finances, is but one of the factors to be weighed and certainly would not overwhelm what is referred to in Nearing as the “generally accepted characteristics of marriage” which were considered by the chambers judge. As Groberman J.A., for this Court noted in Weber v. Leclerc, 2015 BCCA 492 at para. 25, “a checklist approach is not appropriate” for addressing this question and the trial judge must look to “indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship”.
COVID 19 Coronavirus Separation Date Lawyers are available 24/7 to help you deal with the family law stresses generated by the current COVID 19 Coronavirus pandemic. Strict deadlines apply for seeking relief under the Family Law Act especially for unmarried couples.
Call our COVID 19 Coronavirus Separation Date Lawyers today toll-free at 1 877 602 9900
