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When Does Spousal Separation Occur?

When Does Spousal Separation Occur?

Shin v Mun 2019 BCSC 1124 reviewed the law regarding the determination of the date of when separation of spouses occurs , which can often be in dispute.

In HSS v SHD 2016 BCSC 1300 the law was summarized as follows:

It is clear that the law does not require a meeting of the minds with respect to the intention to separate. A physical separation, coupled with one party’s intention to live separate and apart, is sufficient. Nearing v Sauer 2015 BCSC 58 at para.54.

The legal framework for determining that spouses of live separate and apart requires that the court find, first in intention of one spouse to repudiate or in the marital relationship and, second, action consistent with that intention.

In the Nearing decision at paragraph 54, the court recognized that there must be a unilateral intention, as well as “action consistent with that intention”. At paragraph 56 the court observed that a clear statement by one of the parties of his or her desire to terminate the relationship is one of a range of factors the court will consider in determining whether there has been a separation.

The court in Weber v Leclerc 2015 BCCA 494 reviewed the appellate authorities that have evaluated the characteristics of a “marriage like” relationship and observed that the jurisprudence has evolved in accordance with the changing societal norms surrounding marriage.

The court must apply a “holistic” approach, having regard to all aspects of the relationship. While the court must consider the evidence expressly describing the parties’ intentions, the court must test that evidence by considering whether the objective evidence of the parties’ lifestyle and interactions is consonant with those intentions.

It emerges from the authorities that although the living arrangements of the parties are not determinative, this factor is frequently accorded significant weight. Routley v Paget 2006 BCSC 419.

In Robeldano v Queano 2019 BCCA 150 the appeal court found that the marriage like relationship had not been terminated, despite the parties having physically separated and other indications of a termination of the relationship by at least one of the parties, because the parties continued to see each other and one of them cooked and cleaned for the other.

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