The date that spouses separate has important implications under divorce law BC – among other things, the date of separation fixes the date as of which certain assets are to be divided and, as our family lawyers recently discussed, it impacts determinations of spousal support. It is often the case that the spouses disagree on the date of separation for the purposes of divorce law in BC. However, as this article will discuss, the law does not require a meeting of the minds with respect to the intention to separate.
The spouses in H.C.F. v. D.T.F., 2017 BCSC 1226 married in 2004 and had their only child, a son, in 2005. The spouses were never again intimate after the birth of their son, kept separate bedrooms for many years, and had not so much as been out for dinner or gone to a movie together for many years. They had sought marriage counselling, at different times, for many years. Both spouses agreed that that their relationship had been poor for a very long time, but they disagreed about whether they separated on November 22, 2014 or on April 22, 2015. The date of separation was relevant both because of certain bonuses that the husband received in late 2014 and because it would fix the date for division of certain assets.
To support his position on the date of separation, the husband pointed to conversations that took place November 17 and November 22, 2014, during which he told his spouse that their marriage was over. The husband also sent an email on November 22, 2014 that clearly reaffirmed that the marriage was over. In spite of that, the wife took the position that the date of separation was not until April 22, 2015. The wife said that that she continued to “hold out hope” and that it was only on April 22, 2015 that her husband’s intentions became clear. The wife said she was uncertain about her husband’s intentions for various reasons, including, for example, that the spouses would still ski together in Whistler and occasionally have drinks after skiing with other couples. She also pointed to the husband’s tax return for 2014 which listed his status as married (though the husband explained, and the court accepted, that the notation on his tax return was made in error).
The factual and legal considerations that assist the court in determining when a couple has separated are set out in s. 8(3) of the Divorce Act, (R.S.C., 1985, c. 3 (2nd Supp.)) and s. 3(4) of BC’s Family Law Act, SBC 2011, c. 25 and have been discussed at length by the courts in BC. One factor in the overall determination is the living arrangement of the spouses, including when and if they lived together or ceased to live together. The spouses in H.C.F. v. D.T.F. were still living together in the family home in 2017 when their case was decided by the courts, but that is only one factor in the overall analysis and does not preclude a finding that they began living separate and apart at some earlier date.
The central legal proposition in H.C.F. v. D.T.F. is that there is no need for there to be a meeting of the minds for parties to separate under BC divorce law. All of the evidence in H.C.F. v. D.T.F., looked at on an objective basis, showed that the husband had formed a settled intention to separate from the wife on November 22, 2014 and that he clearly communicated that intention to the wife. Equally important was that the husband’s actions matched his stated intention. After he sent the November 22, 2014 email, he began to drive to Whistler on his own. He generally purchased his own groceries and he ate on his own. There was also a series of emails following November 22, 2014, all of which were clear and all of which were directed to having the parties retain legal counsel, separate their financial affairs, tell their son of their separation, and move the process of separating forward. Also importantly was that the wife accepted that after November 22, 2014 but before the end of 2014, she told her son that she and the son’s father “are living independently now”.
BC divorce law does not require a meeting of the minds with respect to the intention to separate. Where the spouses disagree on the date of separation, the court’s task will be to assess objectively, on the totality of the evidence, whether one spouse held a settled intention to separate and communicated that intention to the other spouse. An express statement is only one of the factors for consideration in what is necessarily a contextual analysis. The court will also examine whether the spouse’s conduct is consistent with the intention to bring the marital relationship to an end.
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