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Separation date or “living separate and apart”

If you are unsure when your separation date is, or the date when you and your spouse commenced living separate and apart, you should seek the advice of an experienced family law and divorce lawyer in Alberta.

Throughout the Family Law Act, Divorce Act, Matrimonial Property Act, and other pieces of legislation, you will continue to see references to the phrase “living separate and apart”.  This phrase is found under the headings of child support, spousal support, adult interdependent partner support, divorce, and property division.

When commencing a divorce action you are required to explain to the court when you and your former partner separated or when you guys began living separate and apart.  However, for several reasons, this can be a difficult task.

For example, while one party may have intended on separating from the other on a specific day, the other party may have been attempting to reconcile at the same time, or may have never wished to separate from you at all, and therefore does not believe a separation has even occurred.

Another example is when parties in a family law dispute cease any emotional, sexual, or psychological connection with one another, yet they continue to live under the same roof.  Are they deemed to have separated and are they deemed to be living separate and apart?

The Divorce Act attempts to help us understand the question of whether parties are living separate and apart for the purposes of calculating the period of separation.  Keep in mind that while the definition is from the Divorce Act, a similar definition can be relied on whenever you see reference to “living separate and apart” under other pieces of similar legislation not necessarily dealing with married couples.  The following is an extract from the Divorce Act, Canada.

8(3)      For the purposes of paragraph 2(a)

(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; and

(b)        a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

(i)         by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

(ii)        by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

As you can see from the above, it is all about your “intention” to live separate and apart from the other party.  However, your mental state will have an impact on that determination.  Also impacting on the period you and your partner are deemed to live separate and apart are your attempts at reconciliation. The law provides that if you make an attempt to resume cohabitation, but the attempt to resume cohabitation was less than 90 days and your attempts fail, then the attempt to reconcile will not be held against you and the clock keeps ticking.  In other words, the initial date you intended to separate will be deemed your separation date.  However, if you and your spouse resume the cohabitation and the attempt to reconcile extends beyond 90 days then the clock will restart.  Any future intention to live separate and apart will be deemed your new separation date.

What if we intended on separating but we are still living together?

Again, the actual separation will depend on your intentions, not whether you continue to reside together.  As the Honourable Madam Justice C.S. Phillips of the Alberta Court of Queen’s bench, put it in Campbell v Campell, 2007 ABQB 637:

[83]           It is important to note that residing together under the same roof and reconciliation are not one and the same. In Black’s Law Dictionary, 8th ed., reconciliation is defined as “Voluntary resumption, after a separation, of full marital relations between spouses.” There is a reason that both the Divorce Act and the Matrimonial Property Act employ the language of “living separate and apart” rather than the word “cohabitation” when determining whether parties are separated. Parties may be living separate and apart under the same roof, and it is likewise possible for parties to be married and reconciled while residing under different roofs.

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