Trevor Todd and Jackson Todd have been doing contested estate disputes for over sixty combined years, including acting for separeted spouses.
Dixson v Moss 2023 BCSC 1248 discussed the law relating to a contested claim as to when the spousal parties separated.
The date of spousal separation can be very important in some estate litigation claims.
The question when the parties separated is a question of mixed fact and law that requires the application of the legal test for same.
In S. (H.S.) v. D. (S.H.), 2016 BCSC 1300. While that was a decision under the former FRA, the court referred and relied upon decisions under the FLA in considering the principles that apply to the determination of whether parties have separated:
[42] … The Court’s task is to assess objectively, on the totality of the evidence, whether one spouse held a settled intention to separate and communicated that intention through his or her conduct to the other spouse. An express statement is only one of the factors for consideration in what is necessarily a contextual analysis.
[43] The Ontario Court of Appeal in Re Sanderson and Russell (1979), 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429 (C.A.), held, in the context of a common law relationship, that a relationship has come to an end “when either party regards it as being at an end, and by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one”: at 432. This statement was cited with approval by the Supreme Court of Canada in Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 at para. 42.
[44] In Gosbjorn v. Hadley, 2008 BCSC 219, Madam Justice Gray adopted the analysis articulated in Hodge:
[142] Using the analysis suggested in Hodge, parties cease to live and cohabit in a marriage-like relationship when either party regards the relationship to be at an end, and by his or her conduct, demonstrates in a convincing manner that this particular state of mind is a settled one. [Emphasis added.]
[45] In Nearing at para. 54, Madam Justice Fleming recognized that there must be a unilateral intention, as well as “action consistent with that intention”. At para. 56, she observes 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 a court will consider in determining whether there has been a separation. In my view, the Court did not endorse the notion that such a statement is necessary.
[46] The Court in Weber v. Leclerc, 2015 BCCA 492, recently considered the definition of “spouse” under the Family Law Act. The Court 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: at para. 23.
[143] The determination of a date of separation can be a somewhat arbitrary exercise. The dissolution of a long-term relationship is often a long and convoluted process. The Court must attempt to locate the point at which at least one of the parties regarded the relationship as at an end, and by their conduct demonstrated in a convincing manner that that state of mind was a settled one.
[144] In making this determination, s. 3(4)(b) of the FLA provides:
(b) the court may consider, as evidence of separation,
(i) communication, by one spouse to the other spouse, of an intention to separate permanently, and
(ii) an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.
