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When Did Spouses Separate

Liapis v Keshaw 2021 BCSC 502 dealt with the issue of when did spouses separate.

It is common in family and estate litigation for parties to dispute:

– Was there a spousal relationship
– – if so, when did it begin
– – when did it end

Section 8(3) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides:

8(3)(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other;
In Nearing v. Sauer, 2015 BCSC 58, the Court reviewed the factors regarding the determination of a separation date in light of the wording of the Divorce Act:

It is clear that a meeting of the minds on the intention to separate is not required. A physical separation, combined with one party’s intention to live separate and apart, is sufficient: Dhillon v. Dhillon, [1998] B.C.J. No. 823 (C.A.).

The case law also requires that the spouse who wishes to separate take action consistent with that intention.

The respondent relies on the case of J.L.L. v. G.A.L., 2010 MBQB 39, at para. 4, where the court quoted with approval these comments from Field v. McLaren, 2009 MBQB 118:

Certainly I accept it is settled law that the intention of one party to separate may be sufficient to sever the relationship. Judged objectively though there must be evidence that an intention to separate was not only held, but was communicated to the other party and acted upon.
The person desiring to separate must act in a way consistent with an intention to separate.

In Sachdeva v. Sachdeva, 2013 BCSC 313 relying primarily on Rose v. Guiguet, 2008 BCSC 1225, where the court looked at both the husband’s intention to live separate and apart and his actions.

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 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.

Nearing was cited with approval in S.A.H. v. I.B.L., 2018 BCSC 544, where the Court summarized the considerations:

As is evident from the case authorities, the determination of the parties’ date of separation is a very fact specific exercise.

Note the following questions, framed in the form of a test, useful to determining the date of separation here:

1. Did at least one spouse have the intention to separate?
2. Was the intention to separate communicated to the other spouse?
3. Was the intention to separate acted upon? In other words, using generally accepted characteristics of marriage, did one or both spouses take action that is consistent with the separation, such as:

a. changing how they behaved with each other in public; and
b. changing how they behaved with each other in private.

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