What Is My BC Separation Date Lawyers know that critical legal rights are based upon if parties are separated and when they separated. Spouses sometimes linger in a relationship like “zombie spouses” meaning there is no love and little joint effort but neither party has the courage to pull the plug on their relationship. Just like a zombie, ugly things can happen under these circumstances.
Tal Wolf, senior What Is My BC Separation Date lawyer explains that:
In BC Family Law, the asset division rules in Part 5 of the Family Law Act which includes all the rules dealing with who gets what, are triggered only once a “separation” has occurred, and in common law relationships, the spouses’ rights under those rules expire automatically 2 years later. Our Vancouver BC Separation Date Lawyers warn that not knowing if you are separated can cause you to miss deadlines or be deprived of spousal support and property division rights by statutes of limitation or by death of a spouse if it happens before separation.
What Is My BC Separation Date?
The question of whether the couple really has split, therefore, can make or break a case where common law spouses are still living together albeit under disputed relationship circumstances, or where an elderly spouse is in a hospital, hospice or other assisted living facility, for example, and the separation is alleged to have occurred during that period of time. Even for married spouses, while the 2 years time-bar issue may not be a factor (because the clock does not begin running until after a divorce is granted), questions of lucidity or capacity may arise as to whether the separation was really intended as the product of a sufficiently healthy and functioning mind, or one not subject to duress or undue influence by family members having a hereditary interest in the family assets.
Often, one party wishes to end a marriage and the other does not. Consensus about the desirability of separation, while often achieved, is not required. What is necessary, instead, is proof of one spouse’s intention to separate permanently, coupled with communication by word or deed of that intention to the other spouse, whether or not the other spouse agrees. Particularly when a marriage-like relationship has been of long duration, there may be a need for “compelling evidence of finality” in the form of a “direct statement” or “overt indication of an abandoned relationship”: Thompson v. Floyd, 2001 BCCA 78 at paras. 31-32, 36.
Just a week ago, a fascinating case was decided called Surrett v. Butkiewicz, 2018 BCSC 2194, where separation, and thus whether there should have been any division of property at all, was the crux of the matter. In fact, the parties themselves were both deceased. The parties had lived together for many years but never married. The claimant filed a notice of family claim on February 18, 2014, citing irreconcilable differences. A week later, on the evening of February 25, 2014, the parties were at home in the residence that they had shared in Campbell River for over 20 years. A violent quarrel arose. The respondent killed the claimant by striking her on the head with a blunt object. In October 2014, while on bail facing a murder charge, the respondent took his own life.
The claimant alleged a marriage-like relationship that began in 1986 and continued until February 3, 2014, two weeks before she filed the notice of family claim. The respondent’s position was that, while the parties had a marriage-like relationship for many years, beginning in 1987, this ended around Thanksgiving 2000. From then on, he maintained that the claimant lived in his house as a tenant or roommate and that this state of affairs persisted for almost a decade and a half. The Surrett Court had to answer the singular question: whether the respondent had shown on a balance of probabilities that the parties’ relationship ended permanently more than two years before the claim was filed. Mr. Justice Baird finally opined:
67 There is no specific evidence to support the respondent’s definitive position that the parties separated over the 2000 Thanksgiving weekend, and I am not satisfied, necessarily, that separation occurred as a matter of law when the claimant received the first lawyer’s letter or filed her pleadings. The date of permanent separation must be inferred from all of the evidence. In my view, furthermore, given the parties’ very long relationship, there ought to be compelling evidence of its full, final and permanent termination.
68 The answer to the question whether the claimant was or continued to be a “spouse” two years prior to filing her family claim does not admit of a ready or unambiguous answer. Certainly, the evidence of an ongoing marriage-like relationship is not as clear as it would be in many other cases. The recorded telephone conversation indicates, furthermore, that there was a reasonably lengthy separation along the way. And even if there was a reconciliation, as Ms. Miles’ 2006 visit would strongly suggest, the parties’ relationship towards the end had not only become dangerously dysfunctional but had taken on some notable non-conjugal characteristics.
69 I will say at the outset that there was no credible evidence adduced to show that the claimant ever paid rent or made anything more than nominal contributions to household expenses. The financial evidence establishes that the claimant earned very little money from her waitressing, gardening, and pet- and house-sitting jobs. The parties lived on the respondent’s means to the extent, I find, that the claimant was more or less completely financially dependent on him.
70 Economic dependence often arises from extended cohabitation in a marriage-like relationship: see Eisener v. Baker, 2007 BCSC 83 at para. 40. Although courts no longer consider this to be an essential characteristic of such relationships (see, for example, Weber at para. 12), it remains a potentially relevant factor for consideration: Dey v. Blackett, 2018 BCSC 244at para. 237. At the very least, in my view, the parties structured and pursued a long-term relationship that more or less guaranteed that the claimant would need support if it ended.
71 Furthermore, I find that the claimant was prepared to stay with the respondent long after many other women would have abandoned him. Her daughter’s allegation of sexual misconduct was not enough to make her leave, and she steadfastly remained with the respondent even as their relationship, over a number of years, degraded from affectionate, to indifferent, to unpleasant, to toxic, and ultimately, to homicidal. It is well recognized that such downward progressions can occur in marriage-like relationships independent of any intention to separate. I would add that this form of dysfunctional commitment and loyalty is not a common feature in relations between landlords and tenants.
72 The infliction and absorption of harm between spouses, sadly, is often part of the conjugal dynamic. A desperately unhappy or dysfunctional marriage is still a marriage and the same is true of marriage-like relationships: J.J.G. at para. 71. Spousal mistreatment does not by itself say anything about an intention to separate permanently, and abusive behaviour is not inconsistent with a finding that a marriage-like relationship exists: Kneller v. Greenwood, 2015 BCSC 1410at paras. 23, 104.
Key Takeaway From BC Separation Date Lawyers 1 877 602 9900
So What Is The Key Takeaway?
Of course, spouses may be separated despite continuing to live in the same residence, and this is explicitly recognized in the Family Law Act. Living arrangements of this type are common enough, usually as a temporary stop-gap measure while estranged spouses finalize their matrimonial property settlements. High net worth separations can be particularly tricky.
Here, however, the parties had continued living together for over 13 years after the respondent’s alleged date of separation, and the Court refused to equate the toxicity of their relationship with “separated” status. No matter which side of this issue your own position may depend upon, Surrett presents an interesting look at the complexity of this fundamental pre-requisite for stating a valid asset claim against your spouse.
From your very first consult with us, the Family Law and BC Separation Date Lawyers at MacLean Law will help you to ensure that your separation is a legal one.
