Separation and the Law

Separation usually signals the breakdown of a serious relationship. It can be one of the most traumatic stages in the conclusion of a relationship, but a brief period of separation can also lead to reconciliation and the resumption of life.

This section discusses the legal aspects of separation, the rules about reconciliation, and some of the other things you may want to think about once you have separated or have decided to separate. The information in this section applies to married spouses and unmarried spouses — people who are legally married to each other, people who have lived together for two years or more in a "marriage-like relationship," and people who have lived together for less than two years and have had a child together.

This section also addresses some common questions about sex and new relationships after separation. The first section in this chapter, Separating Emotionally, talks about the emotional dimensions of separation and how those emotional issues can influence the resolution of the legal issues.

Introduction

Separation is a turning point in a relationship in more ways than one. Apart from the obvious change to what was once a romantic relationship, separation also triggers a number of important legal consequences.

• Guardians must have separated before they can ask for an order about parenting children under section 45 of the Family Law Act. Also, an agreement between guardians about parenting children is only binding if the agreement is made after they have separated, under section 44 of the act.
• The date of separation is the date when each spouse gets a one-half interest in all family property and becomes responsible for one-half of all family debt, under section 81 of the Family Law Act.
• The date of separation marks the end of the period during which family property and family debt accumulates, under sections 84(1) and 86.
• An agreement about child support is only binding if the agreement is made after the date of separation, under section 148(1) of the Family Law Act.
• The date of separation marks the beginning of the two-year period during which unmarried spouses must begin a claim for the division of property and debt or for spousal support, under section 198(2) of the act.
• The date of separation marks the beginning of the one-year period during which married spouses must live "separate and apart" to ask for a divorce on the basis of separation, under section 8(2)(a) of the Divorce Act.

Because so many legal issues hinge on the date of separation, it won't be a surprise that people sometimes wind up arguing about when separation occurred. As a result, there's a good bit of case law about what constitutes "separation" and how to figure out what date is the date of separation. Making things a bit more complicated, while the decision to separate is often made by everyone involved in a relationship, it only takes one person to decide to end a relationship, and a decision to end a relationship doesn't require the consent or agreement of anyone else.

Getting a "legal separation"

Some people go to family law lawyers to get a "legal separation." Separation is accomplished, in most cases, by simply leaving the family home with the intention of living separate lives, although technically speaking it isn't necessary to move out at all. Once you or your spouse has announced that the relationship is at an end, boom: you're separated. That's it. There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Now, to be fair, what people often mean by "legal separation" is a separation agreement. That's something else altogether. A separation agreement is a contract that people use to record their agreement about things like how the children will be cared for, how their property will be shared, and how child support and spousal support will be paid. Separation agreements aren't always useful, they're not required by the law, and you can't be forced to sign a separation agreement.

You can find more information about separation agreements in the chapter Family Law Agreements, in the section Agreements after Separation. You can find out more about preparing to separate in How Do I Prepare for Separation?, located in the Helpful Guides & Common Questions part of this resource.

The date of separation

Under the old Family Relations Act, married people rarely argued about when they separated. The issue was sometimes important for unmarried spouses because their ability to ask for spousal support depended on whether they started a court proceeding within one year of the date of separation. Under the new Family Law Act, however, the date of separation has become very important for both kinds of spouses.

In general, the date of separation has the following effects:

• each spouse becomes entitled to a half-interest in all family property, whether that property is owned jointly or in the name of the other spouse only,
• the spouses each become responsible for one-half of family debts,
• any property a spouse gets after the date of separation is their own separate property, not family property,
• any debt a spouse incurs after the date of separation is that spouse's sole responsibility, and
• unmarried spouses have two years from the date of separation to start a claim in court for the division of family property, the sharing of family debt, or the payment of spousal support.

Spouses do not need to move out in order to be separated. All that's needed is for at least one spouse to reach the conclusion that the relationship is over, say so, and then begin behaving as if the relationship really is over. That usually means stopping sleeping together, stopping doing chores for each other, stopping going out together and so on. Section 3(4) of the Family Law Act talks about separating while continuing to live together:

For the purposes of this Act,

(a) spouses may be separated despite continuing to live in the same residence, and

(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.

This is helpful, because the old Family Relations Act didn't talk about separation in any detail. However, the phrase in section 3(4)(b), "the court may consider," suggests that this section isn't a complete list of things the court should consider when deciding when separation happened, and the cases about separation are still very helpful. Here are some of the highlights:

Herman v Herman, Nova Scotia Supreme Court, 1969:

"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In order to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown."

Rowland v Rowland, Ontario Supreme Court, 1969:

"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."

McDorman v McDorman, New Brunswick Supreme Court, 1972:

"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, especially in cases where the separation may have been brought about ... by enforced hospitalization ... all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown."

Lachman v Lachman, Ontario Court of Appeal, 1970:

"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist."

It's important to know that the Canada Revenue Agency has its own definition of separation, and requires people to have lived separate and apart for 90 days before it considers them to be separated. Once that 90-day period is over, the date of separation is the date the couple first began to live separate and apart.

Separation and divorce

Under section 8(1) of the Divorce Act, there is only one reason, or ground, why the court can make a divorce order: marriage breakdown. Under section 8(2), there are three ways to prove that a marriage has in fact broken down:

• the spouses have "lived separate and apart for at least one year,"
• one of the spouses has committed adultery, and
• one of the spouses has treated the other with such mental or physical cruelty that the spouses can't continue to live together.

Almost all claims for divorce in Canada are based on separation. It doesn't imply that one spouse did anything bad or was more responsible for the end of the relationship than the other spouse. Claims for divorce based on adultery or cruelty, on the other hand, do exactly that. As a result, if it winds up taking a year or more from the date of separation for the court to hear and decide a claim for divorce based on adultery or cruelty, the court will often grant the divorce on the basis of separation instead.

Separation and children

Under section 39(1) of the Family Law Act, a parent is a guardian of their child while the parents live together, and the parents remain guardians after separation.

Separation can be extraordinarily difficult for children. In most registries of the Provincial Court, parents are required to attend the Parenting After Separation Course. This program, which is brief and free, teaches parents how to communicate with one another after separation and how to talk to their children about separation. It is an extremely useful course, and one that I think all separating parents should take. You can find more information about this program and other issues relating to children and separation in the chapter entitled Children and Parenting after Separation, in the section Parenting after Separation.

Separation is, of course, also difficult for the adults who are separating. You can find more information about the emotional dimensions of separation in the Separating Emotionally section of this chapter.

Reconciliation

For some people, separation is it. Their relationship is irrevocably over. For others, a period of separation is a time for renewing trust and rebuilding intimacy, and can be a healthy break that rejuvenates and revitalizes a relationship.

The Divorce Act

The Divorce Act actually tries to discourage divorce, believe it or not. There are a few parts of the act that promote reconciliation to help married spouses stay together. Section 7.7 requires lawyers to talk to their clients about getting back together and says this:

(1) Unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, it is the duty of every legal adviser who undertakes to act on a spouse’s behalf in a divorce proceeding

(a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses; and

(b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to the legal adviser that might be able to assist the spouses to achieve a reconciliation.

Under section 10, the court is required to pump the brakes on a divorce claim if it thinks reconciliation is a possibility:

(2) Where at any stage in a divorce proceeding it appears to the court from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the court shall

(a) adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and

(b) with the consent of the spouses or in the discretion of the court, nominate

(i) a person with experience or training in marriage counselling or guidance, or

(ii) in special circumstances, some other suitable person,

to assist the spouses to achieve a reconciliation.

Other parts of the Divorce Act talk about the effect of trying to reconcile on the calculation of the one-year period that spouses must live apart to get a divorce on the basis of separation. Section 8(3) says that:

(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.

In other words, a married couple may attempt to reconcile and can resume a cohabiting relationship for a maximum of 90 days without stopping the clock on separation as a reason for a divorce order. If a couple have lived together for more than 90 days since the first separation, the one-year clock will start again at the end of the last period in which they lived together as married spouses.

The 90 days needn't be consecutive in order to stop the clock. If you are claiming separation as the reason for your divorce, you cannot have resumed your relationship with your spouse for a total of 90 days within the one-year period of separation.

The Family Law Act

Because the Family Law Act doesn't talk about divorce, it also doesn't talk about separation and attempts to reconcile. The one exception to this general rule has to do with the division of property and debt under Part 5 of the act. Section 83 says this:

(1) For the purposes of this Part, spouses are not considered to have separated if, within one year after separation,

(a) they begin to live together again and the primary purpose for doing so is to reconcile, and

(b) they continue to live together for one or more periods, totalling at least 90 days.

(2) Nothing in this Part affects a division of property under an agreement or order in a circumstance where, after the agreement or order was made, spouses live together and then separate again.

These provisions are important because the date of separation is the date when new property and new debt stop being shared family property and family debt and start being each spouse's separate property and debt. The general effect of this section is to reset the date of separation when spouses have resumed living together, so that the date that family property and family debt stop accumulating is moved to the next time the spouses separate. However, if the spouses have made an agreement or got an order about the division of property between the date they first separated and the date they reconciled, that agreement or order is still good.

Things to think about after separation

Once you've separated, there a number of things you may want to do, change, or adjust to reflect your new relationship with your spouse. In general, you need to protect your privacy and safeguard your financial interests.

Bank accounts and credit cards

You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling their authority.

Credit cards, loans, and lines of credit can often be capped by telling the bank to make the accounts deposit only. This will mean that no more withdrawals can be made and the only transactions that can take place are deposits. You could also tell the bank to reduce the credit limit on any joint debts to the current balance on those accounts.

Insurance policies, pensions and RRSPs

You may wish to change the beneficiary of your insurance policies, pensions, and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary on such an account, your bank or insurance company may require your spouse's consent to remove their name as a beneficiary.

Jointly-owned real estate

Most spouses own real estate as “joint tenants." The really important aspect of this type of joint ownership is that if one of the joint owners dies, the surviving owners continue to own the entire property. This is different from the other type of joint ownership, a "tenancy in common." When a joint owner who is a tenant in common dies, their share of the property goes to their estate to be distributed according to their Will.

The Family Law Act says that on the date of separation each spouse is entitled to their share of the family property and responsible for their share of the family debt, and that the spouses take their the shares of the family property as tenants in common. Of course, the Land Title and Survey Authority doesn't know you've separated. How your title is legally registered will not automatically change because of your separation.

There are reasons both for and against keeping the ownership of any jointly-owned property registered as joint tenants. You should get advice from a family law lawyer if you have jointly-owned property. You should see a real estate lawyer for help in changing the way that you own the real estate.

Wills

Spouses have certain rights under the Wills, Estates and Succession Act that change following separation. Among other things, they stop being "spouses" for the parts of the act that talk about how someone's property is distributed if they die without a will and any gifts that are made to a spouse in a will are cancelled.

If you want to make a claim to property owned by your spouse's estate, or ask for child support or spousal support from your spouse's estate, you'll have to sue your spouse's estate under the Family Law Act.

If you've separated but you still want your spouse to receive a gift in your Will, you must update your Will and specify that the gift or appointment should be made even though you've separated. You should see a wills and estates lawyer for help in making or changing a Will.

Powers of attorney and other authorizations

Unless a power of attorney was written to say otherwise, under the Power of Attorney Act, any power of attorney made by you and your spouse terminates on the date of your separation. However, if you want to be sure that your power of attorney has been terminated, you should:

1. revoke the power of attorney in writing;
2. deliver a copy of the revocation to all financial institutions where you have an account, and
3. deliver a copy of the revocation to your spouse and to anybody else you have appointed as your attorney.

(Always keep records of your revocation, and how and when you delivered the revocation!) If you still want your spouse to act as your attorney after you separate, however, you must prepare a new power of attorney.

You should speak with a wills and estates lawyer if you wish to revoke an existing power of attorney or create a new one.

Medical and dental insurance

Normally, spouses and children are still covered by the other spouse's health insurance for a period of time after separation. Coverage for children usually ends once the children turn 19; coverage for married spouses almost always ends on divorce, but coverage for unmarried spouses may end when the parties stop living together. You should contact the people who administer your insurance plan for more information, as different plans have different rules about the eligibility of spouses as beneficiaries following separation.

For most people, maintaining spousal benefits costs little or nothing. If that's the case, consider leaving your spouse's coverage in place for as long as your plan allows; it'll appear rather mean-spirited if you cancel your spouse's benefits. Whatever you do, don't cancel the children's benefits!

Finances and assets

When you separate, make sure you take or make copies of the following items:

• your financial information, including your credit card statements, bank statements, RRSP and investment account statements, and so forth,
• your MSP card and your private medical insurance card, if you have one,
• your immigration or citizenship documents, if you are new to Canada, and
• your passport.

If you have children, consider taking or making copies of their birth certificates and passports too.

You may also wish to take a fair share — half or less than half — of common household property such as the children's clothing, the furniture, and your personal effects. However, it's really important that you proceed with caution. Yes, the odds are quite good that half the household property is yours, but the last thing you want to do after separation is to ramp up the tension with your ex any further. If you absolutely cannot live without the dish set, then take the dish set, but otherwise it may be best to leave the dish set at home. Nothing looks worse than the spouse who takes half the glasses, half the cutlery, half of a dining room suite, and half of the living room furniture.

Now, the following may seem a bit pessimistic, but you should also make a list of all of the property your spouse owns in their own name and of all the things you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions you and your spouse deal with will do. You can collect that information by writing down the names and addresses of the people who are sending your spouse statements; you don't even have to open the envelopes, which is something you should probably avoid in any event. This information could prove invaluable if you wind up in an argument about who owns what or about the extent of the family property and family debt.

Personal privacy

You should also change the passwords or access privileges for your:

• smartphone, smartwatch, tablets, computers and other devices,
• home wifi router and personal hotspots,
• home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,
• wifi-enabled appliances, fixtures and outlets,
• internet, cable and telecommunication service providers,
• email accounts, social media accounts and gaming accounts,
• subscription-based accounts, like Netflix, Spotify and Crave, and
• business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services.

You may also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts.

Sex and new relationships after separation

A lot of people have questions about the consequences of sex after separation. The discussion that follows is about sex with spouses, sex with people other than spouses, new relationships, and how a married person can find themself in an unmarried spousal relationship while still being married.

Sex with spouses

There are, generally speaking, no legal consequences to having sex with your spouse after you've separated. While it might cause some emotional difficulties — such as prolonging the amount of time it takes to recover from a relationship that's broken down — there's nothing legally wrong with having sex with your spouse. Most people would say that there's nothing morally wrong with it either.

Having sex with your spouse after separation will not have an impact on how the care of the children is managed, the amount of child support that is paid, whether spousal support should be paid, or how your property and debt should be divided. The court does not look into this sort of conduct in determining these issues.

However, two things that married spouses probably need to think about are these:

• Reconciliation: While simply having sex with your spouse won't count toward the 90-day period of reconciliation described above, it may if you begin to live with each other while you're doing it.
• Divorces based on adultery: If you are making a claim for a divorce based on your spouse's adultery, and you have sex with your spouse after you start the claim, you could be considered to have forgiven your spouse for the adulterous conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on their adultery. The same principle would probably also apply to divorce claims based on cruelty.

Sex with other people

Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone else after you've separated. (In fact, that may be a much better idea than having sex with your ex.) Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider the romantic, marriage-like aspect of the relationship to have concluded, and your obligation to remain faithful along with it. Married spouses aren't divorced until they get a court order, of course, but, after separation, the marital aspects of their relationships, and the attendant expectations of monogamy, will be considered to be at an end.

Having sex with someone else will not have an impact on how the care of the children should be managed, the amount of child support that is paid, whether spousal support should be paid, or how your property and debt should be divided. The court does not consider this sort of conduct in determining these issues.

Is it adultery?

Adultery is a problem only for married spouses. Technically speaking, it is in fact adultery to have sex with anyone other than your spouse for so long as you are married, even if you're separated, and you'll remain married until you have obtained an order for your divorce.

However, while having sex with someone else might constitute adultery, the court won't care whether you've committed adultery after you've separated or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you like. No one apart from your ex or your in-laws is likely to criticize you for it.

Can it be a ground of divorce?

You cannot sue for divorce based on your own adultery. Now, if it's your spouse who has had sex with someone other than you following separation, you can use their adultery to ask for a divorce order as long as you haven't already claimed for divorce for another reason like separation.

New relationships

New romantic relationships are treated in exactly the same way as new sexual relationships: the courts will not normally be concerned with a new relationship unless your new partner is somehow a risk to the children.

Entering into a new relationship will not usually have an impact on how the care of the children should be managed or on how much child support should be paid, it may or may not have an impact on whether spousal support should be paid, and it will never change how your property and debt should be divided. The court does not look at this sort of conduct in determining these issues. Besides, most separated spouses find themselves in new relationships before they are legally divorced.

What about the kids?

As a general rule, you should be a bit careful about exposing the children to new relationships. It can be very confusing for kids to deal with the idea of their parents separating and then see a parent involved with some stranger who appears to be stepping into the shoes of the other parent.

You should take a lot of care in deciding how and when the children are introduced to your new relationships. In general, older children are more likely to understand new relationships, while younger children are more apt to be confused by the new relationship, especially when the new person tries to "parent" the children themselves. Whether we like it or not, society teaches children a very stereotypical view of family life: there are two parents, those parents love each other very much, and those parents are supposed to be together always. You should ask any new partner to be sensitive to these issues and to avoid presenting themselves to the children as an alternate parent.

What if there are a lot of new relationships?

Sometimes a newly separated spouse feels the need to go out and explore their options, so to speak, and will engage in a series of short-term relationships. This will be very difficult for children of all ages to deal with, if they're aware it's going on. It's one thing to have your parents' relationship break up, which is difficult enough to manage, but it's something else entirely to then be introduced to a parade of new people that a parent appears to be romantically involved with. This can lead to resentment and can encourage the children to align with the other parent.

In general, you shouldn't introduce your children to a new partner unless you are sure of the new relationship and expect to be in it for a good long while. If you're not sure about the longevity of the new relationship, be safe rather than sorry and don't introduce your children to your new partner until you're positive that the relationship will last.

If you're on the other side of the table and are worried about your ex's dating habits, you may want to ask for an order or an agreement requiring your ex to be involved in any new relationship for a minimum period of time — say five or six months — before they introduce the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is warranted. Before you interfere with things, make sure that your concerns about the children are well-founded and are based on their interests rather than on your own emotional reaction to your ex's new relationship.

New spousal relationships

It's possible that a married person who is separated but still married can become someone else's spouse in an unmarried relationship. Not everyone is in a rush to get divorced once a marriage breaks down, and some people don't get around to getting a divorce until many years after separation.

If you are separated from your married spouse, you are still married and will continue to be married to that person until you get divorced. If you start a new romantic relationship while separated from your married spouse, your new partner can become your unmarried spouse if:

• you live with the new person in a "marriage-like relationship" for at least two years, or
• you live with the new person for less than two years but have a child with the person.

This carries some important consequences. If you find that you're married but in a new relationship that qualifies as a spousal relationship:

• you may have an obligation to pay child support for your new partner's children as a stepparent,
• you will have an obligation to support any children you and your new partner have together,
• you may have an obligation to pay spousal support to your new partner, should you separate, and
• you will have to share family property and family debt with your new partner, should you separate.

These obligations are, of course, in addition to whatever obligations you have to your married spouse and any children from your marriage.

Resources and links

Legislation

• Family Law Act
• Divorce Act
• Estate Administration Act
• Wills Variation Act
• Wills, Estates and Succession Act
• Power of Attorney Act

Links

• Separation & Divorce from the Legal Aid BC’s Family Law website
• Parenting After Separation course from the BC Ministry of Attorney General's Family Justice Services Division
• Families Change website from the Justice Education Society of BC and BC Ministry of Attorney General
• Support and Resources for Dealing with Separation and Divorce website from the BC Ministry of Attorney General

Resources

• Living Together or Living Apart
• Separation and Separation Agreements from Dial-a-Law by the People's Law School
• Deciding Who Will Move Out When You Separate from Dial-a-Law by the People's Law School
• Parenting After Separation: Finances online course from the Justice Education Society of BC
• Coping with Separation Handbook from Legal Aid BC
• Separation Agreements: Your Rights and Options from Legal Aid BC and West Coast LEAF
• Going Through Separation from Legal Aid BC
• How to Separate online course from Justice Education Society
• "Ending Relationships" video from John-Paul Boyd, KC

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 26 March 2020.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.