Difference between revisions of "Separation and the Law"

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| resourcetype = more information on
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| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}Separation usually signals the breakdown of a married or unmarried relationship. It can be one of the most traumatic stages in the conclusion of a relationship, but it can also lead to reconciliation and the resumption of life together as a committed couple. Separation occurs when one or both spouses decide that their relationship is over and say so; there's no need to hire a lawyer or to seek the approval of a judge.
}}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 relating to reconciliation, and some of the other issues you may want to consider once you have separated or have decided to separate. The information applies to married spouses and unmarried spouses.  
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 will also address some common questions about sex and new relationships after separation. The next section, [[Separating Emotionally]], talks about the emotional dimensions of separation and how those emotional issues can influence the resolution of the legal issues.
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==
==Introduction==


Although many people move out when they separate, others separate and remain living under the same roof. A physical separation is not necessary to separate; there must simply be an intention to end the relationship and the intimacies and mutual support that a committed relationship usually involves.  
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.


Often the <span class="noglossary">decision</span> to separate is made by both spouses, but it only takes one spouse to decide to end a relationship, and a spouse's <span class="noglossary">decision</span> to end a relationship doesn't require the consent of the other spouse.
*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]]''.


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 and apart, although technically speaking it isn't necessary to move out at all. Once you or your spouse has left the family home or announced that the marriage is at an end, you're separated. 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.
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 <span class="noglossary">decision</span> to separate is often made by everyone involved in a relationship, it only takes one person to decide to end a relationship, and a <span class="noglossary">decision</span> to end a relationship doesn't require the consent or agreement of anyone else.


Everyone is entitled to separate if they wish to end a relationship, and you don't need to see a lawyer to do so; the function of the family law lawyer is to assist in the resolution of the issues arising from the breakdown of the relationship.
===Getting a "legal separation"===


Now, to be fair, what people often mean by "legal separation" is a ''separation agreement''. This is something else altogether. A separation agreement is a contract that a couple 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 are not always necessary, and you can't be forced to sign a separation agreement.  
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.


You can find more information about separation agreements in the chapter [[Family Law Agreements]], within the section [[Separation Agreements]]. You can find out more about preparing to separate in [[How Do I Prepare for Separation?]], located in the ''How Do I?'' section of this resource. Look under ''Marriage, Separation & Divorce''.
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.  
===The date of separation===


Under the old ''[[Family Relations Act]]'', married spouses 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.
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 section of this resource. Look under [[JP Boyd on Family Law — How Do I?#Marriage, Separation & Divorce | "Marriage, Separation and Divorce"]].


Under the new ''[[Family Law Act]]'', the date of separation has become very important for both married and unmarried spouses.
===The date of separation===


In general, the date of separation will have the following effects:
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.


*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.
In general, the date of separation has the following effects:
*The spouses each become responsible (as between the spouses) for one half of family debts.
*Any property either spouse obtains after the date of separation is their own separate property, and not family property.
*Any debt either spouse incurs after the date of separation is that spouse's sole responsibility.
*Unmarried (ie. common-law) spouses have two years past the ''date of separation'' to start a claim in court for division of family property, spousal support, or sharing of family debts, if they cannot otherwise agree, and
*Married spouses have two years from the date of their ''divorce'' to bring claims in court for division of family property, spousal support, or division of debts.


The [[Property_%26_Debt_in_Family_Law_Matters|Property & Debt]] chapter talks about the first four issues in more detail; the [[Spousal Support]] chapter talks about the last issue.
*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 <span class="noglossary">order</span> to be separated. What's needed is for at least one spouse to reach the conclusion that the relationship is over, to say as much to the other spouse, and then begin behaving as if the relationship is over. That usually means stopping behaving like a couple, stopping sleeping together, stopping doing chores and tasks for each other, and so on. Section 3(4) of the ''Family Law Act'' talks about separation:
Spouses do not need to move out in <span class="noglossary">order</span> 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:


<blockquote><tt>For the purposes of this Act,</tt></blockquote>
<blockquote><tt>For the purposes of this Act,</tt></blockquote>
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<blockquote><blockquote><blockquote><tt>(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.</tt></blockquote></blockquote></blockquote>


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 comprehensive listing of things the court should consider, and the cases about separation are still very helpful. Here are some of the highlights:
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:


''[http://canlii.ca/t/gwfq9 Herman v. Herman]'', 1969 CanLII 839 (NS SC)
<blockquote>''[http://canlii.ca/t/gwfq9 Herman v Herman]'', Nova Scotia Supreme Court, 1969:</blockquote>


<blockquote>"[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 <span class="noglossary">order</span> 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."</blockquote>
<blockquote><blockquote>"[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 <span class="noglossary">order</span> 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."</blockquote></blockquote>


''[http://canlii.ca/t/g1493 Rowland v. Rowland]'' 1969 CanLII 500 (ON SC)
<blockquote>''[http://canlii.ca/t/g1493 Rowland v Rowland]'', Ontario Supreme Court, 1969:</blockquote>


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


''McDorman v. McDorman'' (1972), 11 R.F.L. 83 (NBSC)
<blockquote>''[https://canlii.ca/t/j7cf0 McDorman v McDorman]'', New Brunswick Supreme Court, 1972:</blockquote>


<blockquote>"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."</blockquote>
<blockquote><blockquote>"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."</blockquote></blockquote>


''[http://canlii.ca/t/g161p Lachman v. Lachman]'' 1970 CanLII 477 (ON CA)
<blockquote>''[http://canlii.ca/t/g161p Lachman v Lachman]'', Ontario Court of Appeal, 1970:</blockquote>


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


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 considering them to actually be separated; once the 90-day period is over, the date of separation is the date the couple began to live separate and apart.
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.


===Being separated while living together===
===Separation and divorce===


It is possible to separate and remain living under the same roof as your spouse. People sometimes do this when they simply cannot afford to make ends meet while maintaining separate homes or when neither spouse wants to leave the home and the children.
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:


In <span class="noglossary">order</span> for the courts to recognize this form of separation as a separation, the spouses must live as if they have completely ended the romantic aspect of their relationship. This usually includes sleeping in separate beds in separate rooms, opening separate bank accounts and closing joint accounts, separately performing household chores like laundry and cooking, not going out as a couple, and so on. Either way, the spouses must stop behaving as if they are a couple.
*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.


Because the date of separation can sometimes be hard to pin down when separated spouses continue to live under the same roof, it can be very helpful to make some sort of record of the date that separation occurred. Sending a letter or email to your spouse to confirm separation might be a good idea; make sure you keep a copy.
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.


===Desertion===
===Separation and children===


This ground for divorce has been abolished.
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.
 
Instead, section 8(1)(2)(a) of the ''Divorce Act (Canada)'' allows either spouse to apply for a divorce on the ground that the spouses have been living separate and apart for at least a year, and that there is no chance of reconciliation.
Separation can be extraordinarily difficult for children. In most registries of the Provincial Court, parents are required to attend the [https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/pas Parenting After Separation Course]. This program, which is <span class="noglossary">brief</span> 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.


===Separation and children===
==Reconciliation==


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


Separation can be extraordinarily difficult on children. In most registries of the Provincial Court, couples are required to attend a Parenting After Separation program. This program, which is <span class="noglossary">brief</span> 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 program, and one which I encourage all separating parents to take. You can find more information about this program and other issues relating to children and separation in the chapter entitled [[Children in Family Law Matters|Children]], in the section  [[Parenting after Separation]].
===The ''Divorce Act''===


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 next section of this chapter, [[Separating Emotionally]].
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:


==Reconciliation==
<blockquote><tt>(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</tt></blockquote>
<blockquote><blockquote><tt>(a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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.</tt></blockquote></blockquote>


For some couples, a period of separation does not sound the death knell for their relationship. For some, a period of separation can be a time for rebuilding a relationship and can become a healthy break that rejuvenates and revitalizes a marriage.
Under section 10, the court is required to pump the brakes on a divorce claim if it thinks reconciliation is a possibility:


===Married spouses===
<blockquote><tt>(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</tt></blockquote>
<blockquote><blockquote><tt>(a) adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) with the consent of the spouses or in the discretion of the court, nominate</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a person with experience or training in marriage counselling or guidance, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) in special circumstances, some other suitable person,</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>to assist the spouses to achieve a reconciliation.</tt></blockquote></blockquote>


The ''[[Divorce Act]]'' contains a number of provisions intended to discourage divorce and encourage spouses to remain together. Section 8(3)(b) of the act provides that:
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:


<blockquote><tt>A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated</tt></blockquote>
<blockquote><blockquote><tt>(b) A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(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</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(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</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(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.</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(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.</tt></blockquote></blockquote></blockquote>


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 ground of divorce. If a couple have lived together for more than 90 days since the first separation, the clock will start again at the end of the last period in which they lived together as a married couple.
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 <span class="noglossary">order</span> to stop the clock. If you are claiming separation as the ground of 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 90 days needn't be consecutive in <span class="noglossary">order</span> 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.


===Unmarried spouses===
===The ''Family Law Act''===


Because unmarried couples don't need to get divorced, the ''[[Family Law Act]]'' has no similar provisions about separation and attempts at reconciliation, except in relation to property. Section 83(1) says this:
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:


<blockquote><tt>For the purposes of this Part, spouses are not considered to have separated if, within one year after separation, </tt></blockquote>
<blockquote><tt>(1) For the purposes of this Part, spouses are not considered to have separated if, within one year after separation,</tt></blockquote>
<blockquote><blockquote><tt>(a) they begin to live together again and the primary purpose for doing so is to reconcile, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(a) they begin to live together again and the primary purpose for doing so is to reconcile, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) they continue to live together for one or more periods, totalling at least 90 days. </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) they continue to live together for one or more periods, totalling at least 90 days. </tt></blockquote></blockquote>
<blockquote><tt>(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.</tt></blockquote>


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.
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==
==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 the new circumstances of your relationship with your spouse.  
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===
===Bank accounts and credit cards===
Line 126: Line 140:
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.
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 to the current balance on the <span class="noglossary">account</span>.
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 <span class="noglossary">accounts</span>.


===Insurance policies, pensions and RRSPs===
===Insurance policies, pensions and RRSPs===
Line 132: Line 146:
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 <span class="noglossary">account</span>, your bank or insurance company may require your spouse's consent to remove their name as a beneficiary.
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 <span class="noglossary">account</span>, your bank or insurance company may require your spouse's consent to remove their name as a beneficiary.


===Jointly owned real estate===
===Jointly-owned real estate===
   
   
Most spouses own real estate as “joint tenants”. The essential feature of this type of ownership is that if one of you dies, then the surviving party will own the entire property.
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 when you separate, you and your spouse each have an interest in the other’s share of the ownership as a tenant in common, but the Land Title office does not know you have separated. How your title is registered will not automatically change as a result of your separation.  
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 for and against keeping the ownership registered as joint tenants. If you do not want to risk the property becoming entirely owned by your spouse in case of your death, then you can change the type of ownership by transferring your interest to yourself.  This change must be registered with the Land Title Office.
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.


You should see a real estate lawyer for help in changing the way that you own the real estate.
===Wills===


===Wills===
Spouses have certain rights under the ''[http://canlii.ca/t/8mhj 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 separate and your spouse dies, you cannot rely on your spouse's will. Unless the Will says otherwise, any gift or appointment the deceased spouse made to you is revoked at the date of your separation. If you want to make a claim to property owned by your spouse's estate, or for support from your spouse's estate, then you must sue your spouse's estate under the ''[http://canlii.ca/t/8q3k Family Law Act]'' and the ''[http://canlii.ca/t/7vbw Divorce Act]''.   
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 still want your spouse to receive a gift or appointment through your Will, you must update your Will and specify that the gift or appointment should proceed even after your separation.
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.


You should see a wills and estates lawyer for help in making or changing a will.
===Powers of attorney and other authorizations===


===Powers of attorney and other authorizations===
Unless a power of attorney was written to say otherwise, under the ''[http://canlii.ca/t/849l 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:
 
#revoke the power of attorney in writing;
#deliver a copy of the revocation to all financial institutions where you have an account, and
#deliver a copy of the revocation to your spouse and to anybody else you have appointed as your attorney. 


Unless the power of attorney was written to say otherwise, the ''[http://canlii.ca/t/849l Power of Attorney Act]'' says that any power of attorney made by you and your spouse terminates when your marriage or marriage-like relationship ends.
(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.
No matter what your relationship status is, if you want to be sure that your power of attorney has been terminated, you need to prepare a written revocation and deliver a copy to all financial institutions where you have an account, as well as a copy to your spouse and anybody else you have appointed as your attorney.  Always keep records of your revocation, and how and when you delivered the revocation.
If you do still want your former spouse to be able to act as your attorney after you separate, then you should prepare a new power of attorney to make sure that they have a valid power of attorney.  
   
   
If you wish to revoke an existing power of attorney or other authorization or to create a new one, you should speak with a wills and estates lawyer to have the proper documents drawn up.
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===
===Medical and dental insurance===
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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 <span class="noglossary">contact</span> 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.
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 <span class="noglossary">contact</span> 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 <span class="noglossary">case</span>, consider leaving your spouse's coverage in place for as long as your plan allows; it will appear rather mean-spirited if you cancel your spouse's benefits. Whatever you do, don't cancel the children's benefits!
For most people, maintaining spousal benefits costs little or nothing. If that's the <span class="noglossary">case</span>, 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===
===Finances and assets===


When you separate, make sure you take with you or secure the following items:
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 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 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 immigration or citizenship documents, if you are new to Canada, and
*your passport
*your passport.
If you have children,, consider taking or securing their birth certificates and passports.  


You may also wish to take a fair share, half or less than half, of the household property such as the children's clothing, the furniture, and your personal effects. However, I would really encourage you to think twice about this and proceed with caution. Yes, the odds are quite good that half the common household property is yours, but the last thing you want to do after separation is to ramp up the tension 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.
If you have children, consider taking or making copies of their birth certificates and passports too.  


Now, this may seem a bit pessimistic, but you should also take a list of all of the property your spouse owns in their own name and of all the things the two of 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. This information could prove invaluable if you wind up in an <span class="noglossary">argument</span> about who owns what or the extent of the family property and family debt.
You may also wish to take a fair share &mdash; half or less than half &mdash; 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 <span class="noglossary">argument</span> 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==
==Sex and new relationships after separation==


A lot of readers 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 spouse can be in a unmarried spousal relationship with someone else while still being married.  
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===
===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 is nothing legally wrong with having sex with your spouse. Most people would say that there's nothing morally wrong with it either.
There are, generally speaking, no legal consequences to having sex with your spouse after you've separated. While it might cause some emotional difficulties &mdash; such as prolonging the amount of time it takes to recover from a relationship that's broken down &mdash; 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 to be 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.
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:
However, two things that married spouses probably need to think about are these:
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===Sex with other people===
===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. 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 monogamous along with it. Married spouses won't be 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.
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 to be paid, whether spousal support should be paid, or how the family property and debt should be divided. The court does not consider this sort of conduct in determining these issues.
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?====
====Is it adultery?====


Adultery is only an issue 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. You will remain married until you have obtained an order for your divorce.
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.


While having sex with someone else might constitute adultery, the court will not care whether you've committed adultery 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 and your in-laws is likely to criticize you for it.
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?====
====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 get a divorce as long as you haven't already claimed a divorce for another reason like separation.
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 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 could somehow be seen as a genuine risk to the children.
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 and the amount of child support to be paid, and it will never have an impact on whether spousal support should be paid or 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 divorced.
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?====
====What about the kids?====


As a general rule, people should be a bit careful about exposing the children to new relationships. It can be very confusing to deal with the idea of parents separating and then have to cope with the idea of a parent being involved with some stranger who appears to be stepping into the shoes of the other parent.
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 new relationships. In general, older children are more likely to understand the new relationship; 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 Norman Rockwell/Hallmark Cards view of 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.
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?====
====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 engages 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 deal with, but to be introduced to a parade of new people that a parent appears to be romantically involved with can be enormously confusing, and potentially lead to resentment and an alignment with the other parent.
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 the new relationship will last.
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 are the other parent, you may want to ask for an order or an agreement requiring the parent involved in the new relationship to be in that relationship for a certain amount of time say five or six months at a minimum — 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 suggested. Before you interfere with things, make sure that your concerns about the children are well-founded and based on their interests rather than on your own emotional reaction to your ex's new relationship.
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 &mdash; say five or six months &mdash; 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.


===Becoming an unmarried spouse===
===New spousal relationships===


Someone who is separated but still married can become a spouse in an unmarried relationship. Not everyone is in a rush to get a divorce once a marriage breaks down, and some people don't get around to getting a divorce until many years have passed since they separated.
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 a divorce. If you start a new romantic relationship while separated from your ''married spouse'', this new partner can become your ''unmarried spouse'' if:
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 more than two years, or  
*you live with the new person in a "marriage-like relationship" for at least two years, or
*you have a child with the new person. It does not matter whether you're divorced or not.  
*you live with the new person for less than two years but have a child with the person.  
    
    
If you find that you're married and also in a new relationship that qualifies as a spousal relationship:
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 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 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 may have an obligation to pay spousal support to your new partner, should you separate, and
*there may be a requirement to share family property and family debt with your new partner, should you separate.  
*you will have to share family property and family debt with your new partner, should you separate.  
 
These obligations are in addition to whatever obligations you have to your married spouse and any children from your marriage.
 
<!---HIDDEN
==Further Reading in this Chapter==


* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>
These obligations are, of course, in addition to whatever obligations you have to your married spouse and any children from your marriage.
END HIDDEN--->


==Resources and links==
==Resources and links==
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===Legislation===
===Legislation===


* ''[[Family Law Act]]''
* ''[https://canlii.ca/t/8q3k Family Law Act]''
* ''[[Divorce Act]]''
* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[http://canlii.ca/t/840g Estate Administration Act]''
* ''[http://canlii.ca/t/840g Estate Administration Act]''
* ''[http://canlii.ca/t/84g0 Wills Variation Act]''
* ''[http://canlii.ca/t/84g0 Wills Variation Act]''
* ''[https://canlii.ca/t/8mhj Wills, Estates and Succession Act]''
* ''[https://canlii.ca/t/849l Power of Attorney Act]''


===Links===
===Links===


*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
*[https://www.clicklaw.bc.ca/resource/4639 Separation & Divorce] from the Legal Aid BC’s Family Law website
*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/pas Parenting After Separation course] from the BC Ministry of Attorney General
* [https://www.familieschange.ca/ Families Change] website from the Justice Education Society of BC and BC Ministry of Attorney General
*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help Support and Resources for Dealing with Separation and Divorce] website from the BC Ministry of Attorney General
 
===Resources===
 
*[https://www.clicklaw.bc.ca/resource/1058 "Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce"] from Legal Aid BC
*[https://www.clicklaw.bc.ca/resource/1126 Separation and Separation Agreements] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resource/1127 Deciding Who Will Move Out When You Separate] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resource/1529 "Separated with Children - Dealing with the Finances: Parent Workbook"] from the Justice Education Society of BC
*[https://www.clicklaw.bc.ca/resource/4126 "Coping with Separation Handbook"] from Legal Aid BC
* [https://www.clicklaw.bc.ca/resource/4282 MyLaw BC Make a Separation Plan Pathway] from Legal Aid BC
*[https://www.clicklaw.bc.ca/resource/2751 "Separation Agreements: Your Rights and Options"] from Legal Aid BC and West Coast LEAF
*[https://www.clicklaw.bc.ca/resource/4139 Parent Guide to Separation and Divorce] from the Justice Education Society of BC
*[https://www.clicklaw.bc.ca/resource/4242 "Legal Health Checks: Breaking Up - Without Court"] from the Canadian Bar Association
*[https://www.clicklaw.bc.ca/resource/4648 Going Through Separation] from Legal Aid BC
*[https://www.clicklaw.bc.ca/resource/4494 "How to Separate" online course] from the Justice Education Society of BC
*[https://www.clicklaw.bc.ca/resource/4760 "Ending Relationships" video] from John-Paul Boyd, QC
 


{{REVIEWED | reviewer = [[Vanessa Van Sickle]], June 13, 2019}}
{{REVIEWED | reviewer = [[JP Boyd]], 26 March 2020}}


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