Vancouver Richmond Mandarin Speaking Family Separation Lawyers at MacLean Law are led by Lorne N. MacLean, QC one of Canada’s most senior and highly rated* family lawyers. Our Vancouver Richmond Mandarin Speaking Family Separation Lawyers form the largest Mandarin Chinese speaking high net worth family law team in Western Canada with offices in Vancouver, Richmond, Calgary, Surrey, Kelowna and Fort St John, BC. Click here for our Mandarin and Cantonese site. Meet with us using our Mandarin and Cantonese consultation form.
Lorne N. MacLean was selected as a QC in 2011 which is an honour reserved to recognize exceptional merit and contribution and only 7% of practicing B.C. lawyers are awarded this designation. MacLean Law is proud to have has set record judgments in international family law and cross border divorce cases involving millions of dollars of family property around the globe.
Date Of Separation Is Key
The only triggering event for the Family Law Act, division of property and for time limits to begin running is now the date the parties separated. MacLean Law’s top-rated* Vancouver Richmond Mandarin Speaking Family Separation Lawyers advise that in family law litigation, the parties’ separation date is often a hotly disputed issue. In this blog, one of our highly rated (from Google Reviews and Top Choice Awards), Mandarin-speaking lawyers, Jian Kang explains to you why this question is important, how it is determined by the court, and what steps you can take to ensure your rights are not jeopardized.
*(Top Choice Award (2014, 2016, 2017, 2018 and 2019), top-rated reviews on Google, Yelp, threebestrated, lawerratingz.com).
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If you are faced with a dispute on your Mandarin Chinese or Cantonese family law separation date or spousal relationship, dial our Mandarin Line at 604 682 6466, or toll-free at 1 877 602 9900 now to see how our dedicated Mandarin-speaking legal team can help you win your case.
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Vancouver Richmond Mandarin Speaking Family Separation Lawyers Explain the Consequences of Separation Date Dispute
Our Vancouver Richmond Mandarin Speaking Family Separation Lawyers warn that the determination of separation date is crucial because separation is the triggering event for many legal obligations under the B.C. Family Law Act, most noticeably division of family and excluded properties and their gain in value and for common-law couples for time limitations to make any claim.
Here is one example, suppose after two former-spouses separate, one party claims that the separation date is, say, June 1, 2016, while the other says it is 6 months before that, as they were not in a spousal relationship in those 6 months. Now, if that person purchased a real property within those 6 months, the other is potentially entitled to a half-share of it if they are spouses at the time of the purchase, but not so otherwise.
Determination of Separation Date (and Spousal Relationship)
Vancouver Richmond Mandarin Speaking Family Separation Lawyers know it is not surprising that the determination of separation date necessitates an inquiry of whether the parties were spouses in the period between the two separation dates alleged by them.
Unfortunately, the determination of a spousal relationship when there is a dispute on the subjective intention of the parties is not a straight-forward one. It requires the judge to view, from a bystander’s perspective (objectively, in other words), several factors including shared shelter, sexual and personal behaviour, services, social activities, economic support, and children, as well as the societal perception of the couple. Then, the judge will determine whether each factor is neutral or in favour of one particular outcome, before finally arriving at the conclusion by assessing the net effect of all factors.
Vancouver Richmond Mandarin Speaking Family Separation Lawyers Explain Recent Case 604 682 6466
In O.C. v. K.C., 2016 BCSC 72, the judge was faced with the same inquiry and made the following ruling on point:
[17] As above, the parties differ as to the date of separation. According to the respondent it was in 2004 when the parties started to sleep in separate bedrooms. The claimant says it was in October 2008 when the respondent moved out.
[18] Previous judgments have set out the factors to be considered when determining whether a marriage-like relationship existed between two people (for example, Gostlin v. Kergin (1986), 1986 CanLII 164 (BC CA), 3 B.C.L.R. (2d) 264 (C.A.), cited in Coupar v. Roh, 2014 BCSC 1392 (CanLII), at para. 69).The parties’ intentions are relevant but not necessarily determinative (Weber v. Leclerc, 2015 BCCA 492 (CanLII), at paras. 23-24).
[19] In this case the following are the relevant circumstances:
(a) The parties slept in different bedrooms starting in June 2004.
(b) Both parties were on the lease of the family apartment until April 2015.
(c) The respondent continued to maintain the claimant on his benefit plan until April 2015.
(d) Until 2008 the parties participated together in family business such as shopping.
(e) There is no evidence of either party having new partners prior to 2008.
(f) According to the claimant’s affidavits, the parties presented themselves to friends and the public as a couple and they holidayed together between 2004 and 2008. The respondent, in a reply affidavit, says the parties stopped representing themselves as a couple in 2004. I note that the respondent says this only in response to the claimant’s affidavits and he did not say it in his earlier affidavits.
(g) The respondent supported the claimant and the children including payment of the expenses for the family home and expenses for the children. The claimant had no income of her own from 2004 to 2008.
(h) Especially in 2007 and 2008, the respondent worked long hours in order to become established in his field of work and the claimant stayed home to look after the children and the house.
(i) The respondent described the claimant as his wife in his income tax returns from 2004 to 2008 (and for some years after 2008).
(j) In April 2008 the parties transferred $40,000 from their joint account to the account of the claimant and $15,000 to the account of the respondent. According to the respondent further funds were later transferred into his account in order to match the $40,000 transferred to the claimant.
(k) The parties maintained joint bank/investment accounts during the 2004 to 2008 period. The names on the accounts were changed after 2008 including one account closed in 2011 and another in 2013.
[20] A further consideration is s. 3(4) of the Family Law Act, S.B.C. 2011, c. 25 (“FLA”). It states that 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.” There is no such evidence in this case with respect to the period 2004 to 2008.
[21] Taken overall, I conclude that the relationship between the parties continued from 2004 to 2008 as one of husband and wife, in legal terms as it had before 2004. The fact of separate bedrooms beginning in 2004 is noted but sleeping arrangements and sexual relations are only two factors to consider. On the evidence in this case they are only factors supporting the June 2004 separation date and all of the other evidence supports a conclusion that there was a marriage-like relationship until October, 2008. I find that the date of separation is October 1, 2008.
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The leading case of the determination of spousal relationship in B.C. is Weber v. Leclerc, 2015 BCCA 492, where the BC Court of Appeal specifically held that financial dependence is not determinative by itself:
[17] While the majority in Takacs endorsed the idea that the parties’ intentions are important in determining whether they live in a “marriage-like relationship”, it clarified two important points. First, while Gostlin had suggested that economic dependence is a key element of a marriage-like relationship, the majority in Takacsexplicitly recognized that the intention to live in a marriage-like relationship need not include an intention to be financially interdependent. Second, Takacs holds that the intention that is critical is not the intention to be bound by a statutory regime of mutual support, but rather the intention to enter into a relationship similar to marriage. In the context of Takacs, the court saw the issue as one of whether the parties’ intentions in cohabiting were similar to those that might be expected in a relationship of marriage. The key question was whether the couple saw their relationship as one of indeterminate, lengthy duration. While the majority of this Court accepted that the couple saw eventual marriage as a possibility, it was of the view that they considered their existing relations to be transitory.
…
[21] With respect to the question of whether financial dependence or interdependence was a requirement of a marriage-like relationship, Frankel J.A., speaking for the Court, said:
[57] Apposite is the more recent decision of the Supreme Court of Canada in M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, which concerned that portion of the definition of “spouse” in the Family Law Act, R.S.O. 1990, c. F. 3, conferring certain rights on either a man or woman who are not married to each other but who live together in a “conjugal relationship.” In discussing the requirements of conjugal (i.e., marriage-like) relationships, Cory J. indicated that while financial dependence is a factor it is but one of many to be considered:
[59] Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. While it is true that there may not be any consensus as to the societal perception of same‑sex couples, there is agreement that same‑sex couples share many other “conjugal” characteristics. In order to come within the definition, neither opposite‑sex couples nor same‑sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.
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What Can You Do to Protect Your Rights?
In light of the above analysis, we advise that once you notice that separation date/spousal relationship may become a disputed issue, you should take steps to preserve objective evidence regarding your relationship with your spouse (or ex-spouse). Such evidence typically includes things such as records of the joint account, transfer of funds between the two of you, or emails and/or text messages where he/she expresses his attitude toward you or view toward your relationship, etc.
The Vancouver Richmond Mandarin Speaking Family Separation Lawyers at MacLean Law has one of Western Canada’s largest and finest Mandarin-speaking legal teams, who are always happy to help you win disputes on separation date/spousal relationship. We have 6 offices across B.C. (Downtown Vancouver, Richmond, Surrey, Kelowna and Fort St John) and in Calgar., so rest assured that you can meet face-to-face with us at a location that is convenient for you.
To meet with one of your Mandarin-speaking lawyers, please dial our Mandarin Line at 604 682 6466, or toll-free at 1 877 602 9900.
