How does the court determine the date of separation between spouses? Under the Divorce Act, spouses are deemed to have lived separate and apart during any period that they lived apart and either of them had the intention to separate. This requires a physical separation coupled with a recognition by one of the parties that the marriage is at an end. A joint intention of the parties to separate is not required as the intention of one party to separate is sufficient to sever the relationship. The court will consider the following factors to determine whether an intention to separate is held, communicated to the other party and acted upon:
There must be a physical separation. However, just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart. Spouses can occupy separate bedrooms under the same roof and be considered living separate and apart if other factors below also exist.
INTENT OF TERMINATION
There must be the intent of terminating the marital relationship.
The absence of sexual relations is a factor to be considered but not conclusive.
There is little if any communication between the spouses, absence of joint social activities, and eating meals separately etc.
DOMESTIC SERVICES AND HOUSEHOLD MAINTENANCE
There is no performance of domestic services for each other or assistance in household maintenance between the parties.
INTENT OF SPOUSE
The true intent of the spouse is to separate as opposed to stated intent.
The date of separation is therefore a question of fact determined based on objective evidence of various factors including those listed above.