Separation vs. Divorce: Determining the Date of Separation in Marriage or common law relationships

The Divorce Act requires that a couple be separated for one year before they can apply for a divorce. The Parenting and Support Act requires the parties be separated at the time of commencing an application. Separation begins when one party decides that they want to permanently end the spousal relationship.

Sometimes there is a specific conversation or incident that allows for a precise date of separation. Other times separation is a more gradual process, where it is more difficult to determine a precise date of separation. The date of separation can be very important if the spouses are dividing property, because many types of property are valued as of the date of separation.

Factors to Consider When Determining Separation Under Shared Residence

Separation under s. 8(2) of the Divorce Act requires that the parties be living “separate and apart”, however there is substantial case law deciding that spouses can be separate and apart while living under the same roof. The case law also is applicable to common law couples. Often this means that one spouse is sleeping in a separate room, and that their routines are distinct.

If there is disagreement over when the parties separated, the courts have laid out a number of factors to consider in determining if a couple has genuinely separated. These include:

● Having meals together

● Attending social events together

● Having sexual relations

● Representations to the outside world

● Vacations together

● Exchanging gifts

● Continuing to attend family functions together

● Separation of finances

This is not a definitive list and no one factor is conclusive of whether spouses living together are separated or not. However, if a court must determine when spouses living under the same roof separated, these are the types of specific facts they will use to make that determination.

The consequence is that two spouses could be living under the same roof, but meet the legal definition of separated. The date of separation impacts how property of the marriage is valued, and when the parties are able to file for divorce. As with all family law issues, the date of separation is very specific to your individual circumstances, and an experienced family lawyer at Lenehan Musgrave can help you determine your situation and options. Contact our office or submit the form below to schedule a consutlation

Definition of Spousal Support

As family lawyers in Nova Scotia, we often get asked about spousal support. Spousal support, or spousal maintenance, is a monthly payment that one spouse pays to another when their relationship ends. You may be familiar with this concept through the American term “alimony”. Spousal support is the Canadian term used.

Entitlement to Spousal Support

You can refer to our previous blog post for a more depth explanation of entitlement, but there are three basic reasons why a court may award spousal support. The first is compensatory support, where spousal support is awarded to compensate a spouse for some sacrifice or burden they have taken on for the sake of the family. Often this is when one parent was a stay-at-home parent or made a major career sacrifice for the family.

The second reason is non-compensatory spousal support, which is a needs-based award. It is awarded not to compensate a party for the roles adopted during the relationship. It can also be awarded to ensure a party does not suffer an immediate and major decrease in their standard of living upon separation. The court may award non-compensatory spousal support to give the spouse some time to become financially independent.

The third reason is the court can also find that an entitlement to spousal support based on a prior contract or agreement between the parties.

Amount or Quantum of Spousal Support That Is Awarded

The amount that a court will award for spousal support is up to the discretion of the court, and typically less predictable than child support. With spousal support, the court can reference the Spousal Support Advisory Guidelines, which are a tool to determine the relevant ranges for spousal support. However, the court is not required to follow these guidelines.

In determining both quantum and duration, the court will consider the factors listed in s. 15.2 (4) of the Divorce Act. These include:

length of the relationship;
Functions performed by each party;
Any order or agreement relating to the support of either spouse.

The Parenting and Support Act also offers guidance on this issue at s. 4.

Duration of Spousal Support

Usually, the longer the relationship between the spouses, the longer the duration for spousal support. In cases of longer relationships, the court can award spousal support for an indefinite time and reassess the situation after a period. For medium to short length relationships, a common rule of thumb is that the duration of support is usually awarded for a period between half the length of the relationship to the full length of the marriage. For example, an award for spousal support for a 12-year relationship may be for anywhere from 6 years to 12 years, depending on the surrounding factors. If the relationship was short, and there was no economic disadvantage to either spouse, the court may determine that no spousal support should be paid.

Spousal support is extremely fact specific and requires clear advocacy of your position. Our experienced family lawyers at Lenehan Musgrave are more than happy to help determine if there is an entitlement to spousal support, and if so, what amount and time period are fair. We encourage anyone who may have issues with spousal support to contact our office or submit the form below to arrange for an initial consultation to explore the options that may be available to you.