Filing for Separation in BC: Sex and Separation

People often use the phrase “filling for separation”, but there is technically no such thing as legal separation or filing for separation in BC. Spouses can separate anytime, without signing any papers or going to court. While there is no definitive process for filling for separation in BC, the date of separation is important. There are a number of indicators the court will consider where the date of separation is disputed. The presence or absence of sexual relations between the spouses is one such indicator.

Why is the date of separation in BC important?

The date of separation is important as it affects rights to division of family property, debt, child support, and spousal support. For example, unless an agreement says otherwise (e.g. a cohabitation agreement, marriage or prenuptial agreement, or a separation agreement), courts are directed to divide family property equally. Family property is everything a couple owns or owes on the date of separation. So, while the date of trial is the date for valuation of property and debts the date on which rights and obligations crystallize with respect to family property and debt is the date of separation in BC.

How is the date of separation in BC determined?

The Family Law Act, S.B.C. 2011, c. 25 sets out some of the considerations for determining the date of separation in BC. Section 3(4) of Family Law Act states:

a. spouses may be separated despite continuing to live in the same residence, and

b. the court may consider, as evidence of separation,

1. communication, by one spouse to the other spouse, of an intention to separate permanently, and

2. an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.

With respect to the division of family property and family debt in particular, section 83(1) of the Family Law Act sets out the test for the reasonable prospect of reconciliation, which may factor in to the determination of the date of separation in BC:

For the purposes of this Part, spouses are not considered to have separated if, within one year after separation,

(a) they begin to live together again and the primary purpose for doing so is to reconcile, and

(b) they continue to live together for one or more periods, totalling at least 90 days.

In addition to the considerations in the Family Law Act, there are also various objective factors (such as the presence or absence of sexual relations) established by the courts to determine the date of separation.

How do sexual relations factor into the date of separation in BC?

In some cases, it will be quite clear when separation occurs. In other cases, it may be complicated, for example, when spouses remain in the same household post-separation or experience periods of reconciliation. The determination will always be highly fact-specific. Whether or not the spouses continue to have sexual relations is a factor that a court will consider in determining the date of separation in BC.

In Tokaji v. Tokaji, 2016 ONSC 7993 the spouses married in 1986 and had three daughters, who are now 29, 27 and 25 years of age. The spouses lived together in a jointly-owned matrimonial home until 2011 when the husband told the wife that he wanted to separate. In spring 2011, the husband purchased a new home in his name alone, but the wife moved into that home with him. She wanted to take marriage counselling to improve their ability to communicate. The husband would agree, then change his mind, and then agree again. Finally, in or around July 15, 2014 he said definitively that he was not going to go to marriage counselling. The wife took the position that that was the effective date of separation. The husband took the position that the date of separation was when the parties began living separate and apart, though under the same roof, in the summer of 2011.

The Court was asked to determine the date on which it was fair that the parties no longer share the financial consequences of being married. The evidence indicated that the wife made the meals and did the laundry for both of them up until July 15, 2014 when the husband definitively rejected marriage counselling. From that point onward, they no longer shared meals, and she no longer did his laundry and the parties each obtained their own accommodation soon thereafter. The court looked at other indicia, such as how the spouses indentified themselves on tax returns and the fact that they continued to share a bank account until July 2014.

The court also noted that the spouses had sex once a month or once every couple of months up until May 5, 2014. It has been held that the absence of sexual relations is not conclusive. In the Court’s view, however, where there is the presence of ongoing sexual relations, even as infrequent as once every couple of months, while the parties are physically living together, that is a strong factor in favour of a finding that the parties are not yet separated.

While the marriage was rocky, the Court was satisfied on all of the evidence that both parties continued to hold out some hope that the marriage could be saved. They continued to “try to make it work as husband and wife” and it was not until the husband announced that he would not participate in marriage counselling that the marriage was truly over. Accordingly, the date of separation for the purposes of dividing family property was July 15, 2014.

The bottom line on sexual relations and “filing for separation in BC”

While there is no definitive process for filling for separation in BC, the date of separation is important as it affects rights to division of family property, debt, child support, and spousal support. Spouses can live separate and apart while under the same roof and the fact that neither spouse moves out is not determinative, on its own, of the date of separation in BC. The court must look at various objective factors to determine the date of separation in BC, including the presence or absence of sexual relations.