At first glance, it seems like it should be easy to tell if a married couple have separated. But nothing about marriage and divorce can be more complicated. Under Canadian family law, a couple must be separated for at least a year before obtaining a divorce in cases that don’t involve adultery, or physical and mental abuse. The length of a separation can also affect how a family’s property is divvied up. Many separated couples will have no trouble identifying the precise moment at which the relationship was fully and finally over (that’s it, I can’t take seeing your socks on the floor even one moment longer). However, this separation test can help determine if you really are separated.
But when the separation process involves many unsuccessful attempts at reconciliation or a post-separation “friends with benefits” arrangement, the legal situation gets a little muddy. Fortunately, a court case called Rosseter v. Rosseter provides some guidance with a 16-point separation test to help determine when a couple separated.
The Legal Waters Become Muddy When a Couple Remains Friends with Benefits
The married couple had separated for short periods of time on many occasions (due largely to the husband’s alcoholism), but each time had reconciled a little later. But finally in May or June of 2001, the wife went to live with her parents for a few months, and then rented her own apartment. After that time, the husband and wife always kept separate residences, but there were subsequent attempts at reconciliation even as late as 2009.
The court was asked to determine a narrow question that would affect the couple’s “valuation date,” which is defined under the Family Law Act by reference to “the dates the spouses separate and there is no reasonable prospect that they will resume cohabitation.” By extension, this affected the manner in which the former couple’s property would be divided.
The court scrutinized the many facets of the couple’s relationship, and in doing so, it came up with a list of 16 factors that it considered in detail.
1. Maintaining Separate Residences
Here, the couple had lived separately since 2001. But the court pointed out that “just as parties can live separate and apart under the same roof, they can cohabit under different roofs.”
2. Reasons for Maintaining Separate Residences
In this case, the wife had moved out because of the husband’s alcoholism. But this can include consideration of other reasons, such as whether the spouses have formed new relationships.
3. Eating Meals Together
This includes consideration of not only whether meals are eaten together, but also where (at home or at restaurants).
4. Other Services Performed for One Another
This involves whether household services are provided (washing clothes, cleaning and shopping).
5. Presence of Personal Items at the Other Party’s Residence
In this case, the wife bought pajamas and underwear for the husband to use while he was at her new residence; the wife also left some clothes at the former matrimonial home.
6. Attending Social Functions Together
These include attending social functions, entertainment outings (such as attending films and theatre together) and recreational activities.
7. Celebrating Special Occasions Together
The court considered that the husband still bought the wife a birthday gift each year.
8. Helping Each Other During Difficult Times
The court heard evidence that the husband stayed with her for almost a week when her father died. They also attended a few family funerals together.
9. Vacations Together
Here, the couple had travelled to Florida on four occasions long after the wife had left the matrimonial home in 2001, and slept in the same room. However, later vacations together did not go well.
10. Sexual Intercourse
The degree to which the parties remained intimate was a significant factor in determining the date of their separation. In this case, the spouses continued to have sex about a half-dozen times each year after 2001.
11. Fidelity to One Another
This was another very significant factor. As the court put it, “When determining whether a couple are cohabiting, the frequency of sexual intercourse matters less, in my opinion, than the identity of the person with whom it occurred.”
12. Financial Support
This involved examination of whether the spouses took steps to separate their financial affairs.
13. Shared Use of Assets
This included items such as vehicles. In this case, the couple also shared a safety deposit box.
14. The Parties’ Behavior Towards One Another in the Presence of Third Parties
The court examined how the couple portrayed themselves in public, whether they sat together at family or formal functions, and whether they were physically affectionate.
15. How the Parties Referred to Themselves in Documents
The court looked at whether the couple refer to themselves as “married” rather than “separated” when filing income tax returns, for example.
16. Steps Taken Towards the Legal Termination of Their Relationship
The court looked at the concrete steps that each of the spouses may have taken to formally end their union. This included consulting lawyers and filing a petition for divorce.
Overall, the court found that there was no reasonable prospect of the resumption of cohabitation for this couple. Some half-hearted suggestions by each to attend counselling during the separation periods were not acted upon, which the court described this way, “both parties demonstrated a willingness to attend counselling by making the request, and the presence of a stubborn streak by refusing it.”
This list from Rosseter v. Rosseter is quite useful. When taken together, it shows the factors that a court will take into account as indication of whether there is a “reasonable prospect of the resumption of cohabitation” within the meaning of the Family Law Act.
If enough of the factors are not present, then it can safely be said the parties are legally “separated” and the date of that event is what is used as the valuation date for the property division exercise.
This is an excerpt from Russell Alexander’s new book, “The Path to a Successful Divorce: Russell Alexander’s Guide to Separation, Divorce and Family Law.”