Separation Agreements

Living “Separate and Apart” on the Way to Divorce – What are the Tests?

separate and apart
Written by Russell Alexander / (905) 655-6335

These days, living together before marriage is quite common. But increasingly, living together after separation is also more common than it used to be.  Financial pressures, a skyrocketing real estate market, and job losses related to COVID-19 (or otherwise) can make it impractical for separated spouses to actually start living apart when they decide the marriage or romantic partnership is heading for an end. 

This means that spouses who intended to achieve a legal separation – as a precondition to obtaining a lawful divorce – have sometimes been forced to keep living together under the same roof.  As a result, the actual date of legal separation can become murky.

An example of this is McBennett v. Danis. The former couple, who had a young child together, agreed that for the purposes of qualifying for a divorce, they had been living separate-and-apart for at least a year as required.  But they disagreed on the actual date of their separation, which was in this case was important for calculating the spousal support owed. 

The wife said they separated in March of 2017, while the husband said it was March of 2018. The exact date was unclear because the spouses had a tumultuous relationship; it was peppered by many incidents caused mainly by the husband’s infidelity.  

The court looked at the governing principles, which it summarized this way: 

  • Living “separate-and-apart” for divorce entitlement and the end of “cohabitation” for spousal support calculations are symbiotic: – cohabitation ends when the state of living separate-and-apart begins.
  • Cohabitation means more than living under one roof; it means being together in a conjugal relationship that involves a mutual assumption of rights, duties and obligations normally manifested by married people.

With those broader principles in mind, the court turned toward the more concrete tests. It said that to determine the end of cohabitation and the beginning of living “separate-and-apart”, the court is required to look at the “the unique realities of the parties’ relationship, routines, social and other habits and practices and living arrangements over time.”  No single factor is conclusive; it requires “a global weighting of all factors.”  

To this end, the court provided a comprehensive list of the specific considerations at play:

  • Spouses living separate-and-apart involves two things:  1) living apart; and 2) an intent by one or both that they live apart from each other.
  • Living “apart” means physical separation.  However, in some cases this can occur under the same roof.
  • With that said, having two residences for a period of time, and spending significant periods apart, may not be conclusive.  The main reason for having separate residences will be a factor.
  • To qualify, one or both spouses must withdraw from matrimonial obligations with the intent of destroying or repudiating the marital relationship. 
  • The law does not require a “meeting of the minds” regarding the intent to separate.  The decision need not be a mutual one.
  • A clear statement or unequivocal act by one spouse to terminate the relationship will be very relevant.
  • Brief references to the possibility of reconciliation – with no serious steps toward that goal – will not necessarily end or disrupt a state of living separate-and-apart.

Though none of the following are conclusive in isolation, the court added some esoteric factors into the mix of tests to be applied. These included whether the spouses:  

  • Still have a sexual relationship; 
  • Are romantically involved with other people; 
  • Continue to discuss family issues; 
  • Have changed expectations around daily activities; 
  • Continue to participate in joint social activities; 
  • Spend vacations together; 
  • Still attend family events and celebrate special occasions together; 
  • Eat meals and share household chores together; and/or 
  • Exchange gifts or tokens of affection with each other.

Also relevant is how the spouses refer to each other in public, and how they describe their status on Income Tax returns and similar documents.   

Finally, a court will also look at whether they have begun to separate their financial affairs, and if they have taken formal steps to terminate their relationship and resolve the resulting legal issues.

Looking at the facts of the case before it, the court in McBennett v. Danis went through and applied the tests one-by-one.  Looking at all the circumstances, the court agreed with the wife that she and the husband had separated in March of 2017.  The amount and duration of spousal support, payable from the husband to the wife, was calculated accordingly.

Full text of the decision: McBennett v. Danis, 2021 ONSC 3610 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.