Separating from your partner, whether you are married or not, is often a difficult time for everyone. The separation date can also impact the couple’s family law entitlements and obligations.
This article considers some of the reasons why the date of separation matters, along with how to determine the actual date of separation for common law couples. This article will also look at a recent decision of the Court of Appeal for British Columbia, which illustrates how the courts determine the date of separation in the event of a dispute.
Date of separation can impact common law status
The date on which a common law couple separates may impact their entitlements under the applicable family law legislation and can impact whether the couple has been together long enough to qualify as common law spouses.
Common law spouses have certain entitlements under the British Columbia Family Law Act, such as a general entitlement to an equal division of property and debt (with certain exceptions including for excluded property) and potentially an ability to claim spousal support.
Under the Family Law Act, a couple has common law status if they have lived in a marriage-like relationship for a continuous period of at least two years. As an alternative to the two-year requirement, a couple can have common law status (except for property purposes) if they have lived together in a marriage-like relationship and have a child together.
Separation date is also relevant for property division purposes
The general rule is that spouses are entitled to an equal division of family property and debt on separation. The Family Law Act provides that family property is property owned on the date of separation. Property acquired by a spouse after this date is only included in limited circumstances.
For the purposes of property division, the Family Law Act states that spouses are deemed not to have separated if, within one year after separation, they live together again to reconcile their relationship for one or more periods totalling at least 90 days.
Time limits for starting certain proceedings can depend on separation date
Another example of the relevance of the separation date is that it sets the time limit for starting certain types of proceedings.
Under section 198 of the Family Law Act, a common-law spouse cannot start a proceeding for property or debt division, or for spousal support, more than two years after the date of separation. There are certain limited exceptions to this deadline. So, how do you determine the date of separation?
The date of separation depends on a range of factors
The Family Law Act provides some guidance on determining whether a couple has separated. According to section 3, spouses can be separated even if they continue to live in the same residence. In the event of a dispute that comes before the courts, evidence of communication or action taken by one spouse that indicates an intention to separate permanently is relevant.
When assessing whether a marriage-like relationship has ended, courts look at a range of factors, such as whether the generally accepted characteristics of marriage have continued, even following a physical separation.
If the couple has physically separated and at least one of them has displayed the intention of living separate and apart and has taken steps consistent with that intention, they may have been found to have separated. Importantly, the spouses do not need to agree to separate, as only one party needs to demonstrate the intention to separate.
Parties disagreed on the separation date affecting the limitation period
In Gupta v Kumar, the parties had lived together in a common law relationship and had one child together. In 2018, the claimant started proceedings seeking an unequal division of family property and debt. They also had a cohabitation agreement which dealt with property division and spousal support issues, which the claimant argued was void.
The claimant argued that the parties had separated in 2016, whereas the respondent argued that they had separated in 2013. The date of separation was important to this case because, under section 198 of the Family Law Act, the applicant can only start proceedings within two years of separation.
Parties stopped living together in 2013 but remained in touch
After an argument in 2012, the applicant moved into the basement suite of the family home. In February 2013, she moved out of the family home entirely. The applicant stated that the respondent visited to see his daughter often. However, the applicant claimed that their relationship continued. In September 2013, the parties signed a written child support agreement.
In 2015, the applicant returned to the respondent’s basement suite, paying monthly rent to the respondent. This arrangement lasted until the end of 2016. The applicant said that she found out he was having an affair and separated from him at this point.
Courts decided the parties separated in February 2013
The trial judge had to determine whether the parties lived in a marriage-like relationship after February 2013 or whether they had separated.
The trial judge decided that the parties separated in February 2013. The evidence was “complex and hotly contested,” but the judge accepted that the respondent decided to live separate and apart. He implemented this intention by living apart from her from February 2013. This was supported by other factors, such as the respondent charging the applicant rent while she lived in the basement suite, and he continued to pay her child support.
The claimant appealed. However, the Court of Appeal found no errors in the trial judge’s analysis and dismissed the appeal. As a result, the claimant could not bring property division proceedings under the Family Law Act.
Contact Meridian Law Group in Vancouver for Advice on Separation and Divorce Disputes
The experienced family lawyers at Meridian Law Group advise their clients on various issues stemming from a separation or divorce. There can be a lot of things to think about and deal with following a separation, in addition to the emotional turmoil, such as parenting issues, property division and support payments. Let us help and take some of the pressure off. To organize a confidential consultation with a member of our team, please call (604) 687-2277 or reach out online.
