Sometimes it is necessary in estate litigation to determine when spouses ceased to be in a spousal/marriage like relationship.
The case of CC v SPR 2022 BCSC 1817 reviewed the law relating to the date when parties have separated.
Spouses can separate even if they continue to inhabit the same dwelling. The seminal case of Rushton v. Rushton (1968), 2 D.L.R. (3d) 25, 1968 CanLII 606 (B.C.S.C.) articulated this principle as follows (at 27):
The words “separate and apart” are disjunctive. They mean, in my view, that there must be a withdrawal from the matrimonial obligation with the intent of destroying the matrimonial consortium, as well as physical separation. The two conditions must be met. I hold that they are met here. The mere fact that the parties are under one roof does not mean that they are not living separate and apart within the meaning of the Act. There can be, and I hold that here there has been, a physical separation within the one suite of rooms.
In Nearing v. Sauer, 2015 BCSC 58 [Nearing], the court further clarified that a disagreement between the parties as to their separation does not preclude a judicial finding of separation. Instead, where there is no meeting of the minds on the intention to separate, courts will generally examine whether one party intended to live separate and apart and took “action consistent with that intention”: at para. 54. The court explained that, in practice:
 … 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 … 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 …
Building on Nearing, the court in H.S.S. v. S.H.D., 2016 BCSC 1300, rev’d on other grounds 2018 BCCA 199 [H.S.S.], reframed the approach to dates of separation as follows:
 … The legal framework for determining that spouses have lived separate and apart requires that the Court find, first, an intention of one spouse to repudiate or end the marital relationship and, second, action consistent with that intention. The parties disagree on whether that action must include an unambiguous verbal expression of his or her settled intention.
 … 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.
The framework articulated in H.S.S. largely mirrors the conclusions of the court in Charen v. Charen,  B.C.J. No. 3152:
 In S.A.H. v. I.B.L., 2018 BCSC 544 at paras. 49-54, I reviewed the various authorities respecting the determination of the date of separation. Based on my reading of the authorities, I concluded at para. 55 that this was a fact driven exercise which could be aided by answering the following questions:
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.
The authorities caution that while the parties’ subjective intentions are relevant, they are not necessarily determinative: O.C. v. K.C., 2016 BCSC 72 at para. 18.
In Bartch at para. 94, the court helpfully summarized a non-exhaustive list of factors to be considered in determining spousal separation, referencing Coupar v. Roh, 2014 BCSC 1392:
• the lack of changes to distinguish the relationship before moving into separate residences and after moving into separate residences: para. 73;
• regular interaction between the parties including occasional dining out or attending events together: para. 74;
• continuing to perform domestic services, cooking, cleaning and laundry: para. 83;
• continuing to attend social functions together: para. 84;
• making gifts to one another: para. 85;
• taking vacations together: para. 86;
• neither party becoming involved in another relationship: para. 87;
• continuing to share the common use of assets: para. 88; and
• whether one party told the other party of the intention to permanently end the relationship: para. 90.