Kay Rhodenizer – November 2018
Living separate for one year gives either spouse grounds for a divorce. The separation date also affects the date from which child and/or spousal support can be claimed, what assets and debts will be treated as matrimonial and what Canada Pension and employment pension contributions will be divided.
The Divorce Act provides that spouses will be treated as separated for any period when they lived apart and either of them intended to live separate from the other although the separation period is not considered to be interrupted by cohabitation for a period or periods totaling no more than 90 days if trying to reconcile was the primary purpose.
For Divorce Act purposes a couple can live separately in the same home if certain criteria are met. Judges recognize that especially at the beginning of a separation there may be a variety of reasons for this: a parent may be reluctant to move until there is agreement on when s/he will parent the children or the couple may not have the money to live in separate residences.
There is a difference between living together in an unhappy marriage and living together as a separated couple. Where a couple continued to live together and disagree on the separation date, judges will look for evidence as to when:
- One spouse told the other the marriage was over
- The spouses began to sleep in separate rooms
- The couple stopped attending each other’s work-related functions
- The couple stopped attending social/community functions together and/or engaging in joint routine daily activities
- Either party started dating or formed a new relationship
- When one or both parents told the children about the separation
- When one or both parties removed the other from his/her work benefits such as health insurance
- When either spouse filed a tax return showing his/her marital status separated. This can be evidence of intent to separate even though Canada Revenue Agency will not allow claims for the deductions/tax credits available to separated parties until they live in separate residences.
Separated couples might continue to spend holidays like Christmas with their children, vacation together with the children or jointly attend their children’s activities. This might not be viewed as engaging in a “couple’s activity” if the primary purpose was to act as parents rather than a couple.
Occasional sexual relations may or may not affect the separation date. Also, if a separated couple attended marriage counselling it will be relevant to determine if the purpose of counselling was to try to reconcile or to work through issues arising from the separation.
If you and your spouse disagree on your separation date, MDW Law lawyers can help you assess what date a judge might use in your circumstances.