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What does it mean to “separate”?

Prepared by Mel Naimi

· Family Law

It is often believed that individuals need to obtain a “legal” separation in order to be separated. A “legal” separation does not actually exist. Rather, separation occurs when one spouse in a marriage, or in a marriage-like relationship, communicates their intention to separate to the other spouse. This can occur when one spouse leaves the family home and begins to live separately, or, it can occur with both spouses still residing under the same roof (see Der Woon v. Zadorozny, 2020 BCCA 95).

So what does separation look like? Let’s explore an example.

John and Jane purchase a condo together in 2018 and begin cohabiting. Between 2019 and 2020, John and Jane have several fights, which results in Jane sometimes staying at her sister’s house for a few nights. During that time, Jane always returned back to the condo after 2-3 nights, having resolved the issues with John.

In 2021, John and Jane again begin arguing on a more regular basis. Jane does not leave the condo at this point. One night in March 2021, Jane prepares dinner for John and during this dinner, she tells John that the relationship is over. After this conversation, John and Jane rarely speak and are not intimate. Three days after, John asks Jane if she is sure about her decision, and she answers she is. Despite this, they continue to reside at the condo together, sharing the same bedroom, until 3 months later, June 2021, when Jane moves out.

In the above example, it is most likely that March 2021 will be determined as the separation date. This is because despite the several times Jane left the condo between 2019 and 2020, it was not until March 2021 when Jane communicated her final intention to terminate the relationship – i.e., there was no further attempts at reconciliation. Jane made her decision to end the relationship and clearly communicated this to John. Then, after communicating this, despite continuing to live together for 3 months, John and Jane did not live together as spouses, but as roommates.

The above example demonstrates how tricky it can be to determine the correct separation date. Ultimately, it is a question of mixed law and fact, so the answer will be determined after the court assess all relevant factors.

If you’d like to learn more, please contact us to see how we can best help you.


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