When Is the Date of Separation During a Divorce?

When parties are getting a divorce, they need to consider the date of separation. After separation, there are obligations that the parties may have toward one another, such as providing child support or spousal support. The date of separation can also affect which property regime applies, whether under the Matrimonial Property Act or the newer Family Property Act in Alberta. Therefore it is important to have a sense of how the date of separation is determined, as there is not always a clear point where the parties have separated. In many cases, the parties may continue living together even though they have separated and are not reconciling. This raises questions about when the parties have separated. Luckily, there are some principles to determine if the parties have separated.

In this post, we will discuss the factors for determining when the parties have separated. As this highly depends on the facts of the case, we will discuss a case example, Savoie v Lambert, 2024 ABKB 422, where the court goes through this analysis. Even if parties continue living together, they can be considered separated based on these factors. In some cases, it can be difficult to determine when the parties have separated, even though it is an important date for handling divorce issues like child support, spousal support, and property division. This post will provide important takeaways for parties seeking to understand when they are considered separated, especially if they continue living in the same home.

Why is it important for parties to know when they have separated?

Parties need to know their date of separation because it impacts their family law matters.

First of all, the date of separation is important for determining when the parties can start their divorce claim. The parties must have separated for at least one year to get a divorce. 

The date of separation can also impact how long the parties have to file a claim for family law issues, such as property division, spousal support, etc. For instance, parties generally have 2 years from the date of separation to make a claim for property division under the Family Property Act.

In addition, the date of separation can also impact which property division regime applies. If the date of separation was before January 1, 2020, the former Matrimonial Property Act applies. Otherwise, the newer Family Property Act applies to property division. These regimes apply property division differently for common-law relationships, so the date of separation may also play an important role. 

When are parties considered separated?

Under the Divorce Act, the breakdown of a marriage occurs when the parties have lived separate and apart for at least a year before the divorce proceeding and continue living separate and apart at the start of the proceeding. Even if parties disagree on the separation date, they will be deemed to be living separate and apart for a period that they lived apart if either of the parties intended to live separate and apart. In other words, even if one of the parties does not want to end the relationship, only one party needs to have the intention to live separate and apart.

In some cases, there is no clear end to the parties’ relationship. If the parties have reconciled or plan to do so in the future, this will not be considered a separation. Notably, if the parties reconcile for less than 90 days during the separation period, they can still be considered separated, and this will not disrupt the one-year separation requirement for filing for a divorce. 

As it can be difficult in some cases to determine when parties have separated, especially if they continue to live in the same home and have had periods of reconciliation, there are several factors for the court to determine when the parties have separated, which will be discussed below. 

Can parties be considered separated if they are living in the same home?

The courts have recognized that living separately and apart in the same home depends on the parties’ unique circumstances. The court will consider the parties’ routines, social and other habits, practices, and living arrangements over time to determine whether they have separated and if they continue living in the same home for a period of time. The court will consider whether any of these patterns of living arrangements have changed after the claimed separation. 

The court can consider the following factors, although this is not an exhaustive list:

1. Where the parties sleep 
2. Where the parties eat
3. Whether the parties engage in sexual relations
4. Whether the parties have been romantically involved with other people
5. Whether the parties share household responsibilities and/or facilities in the home
6. Whether they participate in family, social, recreational, or travel activities together as a couple
7. The nature and content of the parties’ communications
8. The way that the parties present themselves to other people, including family, friends, the wider community, in government records, etc.
9. Whether the parties have a valid reason for continuing to live in the same home
10. The extent to which the parties have modified or separated their finances
11. Whether the parties have participated in counseling or mediation
12. Whether the parties have taken legal steps to end their relationship

Court Finds Parties Separated, Despite Living in Same Home For Years 

In the Savoie case, the parties disputed exactly when they had officially separated. The parties married in 1993. The husband claimed that the parties separated when he moved into the basement of their home in 2011. He left the home in 2016 after their youngest child left for university. 

The court found that the parties separated in 2012 when the husband did not intend to reconcile with the wife. Based on the evidence, the court found that their personal lives were primarily separate by 2012, and they spent very little time together. There was also no evidence that they were intimate, and the husband also dated other people. The parties also did not share domestic responsibilities and the wife had stopped cooking and doing chores for the husband. The court also found that the parties agreed to stay in the home together until their youngest child left for university. This showed that the parties acknowledged the breakdown of their marriage and were preparing to separate physically.

While the parties had a joint family email address and still had intertwined financial affairs, including using the same tax accountant, engaging in income splitting, and the husband not filing his taxes as separated until 2015, these were insufficient to suggest that the parties had not separated by 2012.

The Calgary Family Lawyers At Mincher Koeman Can Assist You With Your Separation Matters

Parties going through a divorce will need clarity on when they separated, which highly depends on the circumstances of the case. The date of separation has significant implications on claims such as property division, child support, and spousal support. You should contact one of our family law lawyers at Mincher Koeman, who is experienced in assisting parties with issues involving property division, child support, and spousal support. Our Calgary family law lawyers are dedicated to finding your best resolution.

To book a consultation, please contact us online, or by phone at 403-910-3000.