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| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}Separation usually signals the breakdown of a married or unmarried serious relationship. It can be one of the most traumatic stages in the conclusion of a relationship, but it a brief period of separation can also lead to reconciliation and the resumption of life together as a committed couple. Separation occurs when one or both spouses decide that their relationship is over and say so; there's no need to hire a lawyer or to seek the approval of a judge.
This section discusses the legal aspects of separation, the rules relating to about reconciliation, and some of the other issues things you may want to consider think about once you have separated or have decided to separate. The information in this section applies to ''married spouses '' and ''unmarried spouses'' — people who are legally married to each other, people who have lived together for two years or more in a "marriage-like relationship," and people who have lived together for less than two years and have had a child together.
This section will also address addresses some common questions about sex and new relationships after separation. The next first sectionin this chapter, [[Separating Emotionally]], talks about the emotional dimensions of separation and how those emotional issues can influence the resolution of the legal issues.
==Introduction==
Spouses do not need to move out in <span class="noglossary">order</span> to be separated. WhatAll that's needed is for at least one spouse to reach the conclusion that the relationship is over, to say as much to the other spouseso, and then begin behaving as if the relationship really is over. That usually means stopping behaving like a couple, stopping sleeping together, stopping doing chores and tasks for each other, stopping going out together and so on. Section 3(4) of the ''Family Law Act'' talks about separationseparating while continuing to live together:
<blockquote><tt>For the purposes of this Act,</tt></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently.</tt></blockquote></blockquote></blockquote>
This is helpful, because the old ''Family Relations Act'' didn't talk about separation in any detail. However, the phrase in section 3(4)(b), "the court may consider," suggests that this section isn't a comprehensive listing complete list of things the court should considerwhen deciding when separation happened, and the cases about separation are still very helpful. Here are some of the highlights:
<blockquote>''[http://canlii.ca/t/gwfq9 Herman v. Herman]'', Nova Scotia Supreme Court, 1969 CanLII 839 (NS SC):</blockquote>
<blockquote><blockquote>"[A]s long as the spouses treat the parting or absence, be it long or short, as temporary and not permanent, the couple is not living separately even though physically it is living apart. In <span class="noglossary">order</span> to come within the clear meaning of the words 'separate and apart' in the statute, there must need be not only a physical absence one from the other, but also a destruction of the consortium vitae or as the act terms it, marriage breakdown."</blockquote></blockquote>
<blockquote>''[http://canlii.ca/t/g1493 Rowland v. Rowland]'' , Ontario Supreme Court, 1969 CanLII 500 (ON SC):</blockquote>
<blockquote><blockquote>"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other."</blockquote></blockquote>
<blockquote>''[https://canlii.ca/t/j7cf0 McDorman v. McDorman]'' (, New Brunswick Supreme Court, 1972), 11 R.F.L. 83 (NBSC):</blockquote>
<blockquote><blockquote>"While the mere living separate and apart of the spouses may not be conclusive of the fact that there has been a permanent breakdown of the marriage, especially in cases where the separation may have been brought about … ... by enforced hospitalization … ... all of the circumstances accompanying such separation must be considered in determining whether or not it has in fact led to a permanent marriage breakdown."</blockquote></blockquote>
<blockquote>''[http://canlii.ca/t/g161p Lachman v. Lachman]'' , Ontario Court of Appeal, 1970 CanLII 477 (ON CA):</blockquote>
<blockquote><blockquote>"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist."</blockquote></blockquote>
It's important to know that the Canada Revenue Agency has its own definition of separation, and requires people to have lived separate and apart for 90 days before considering it considers them to actually be separated; once the . Once that 90-day period is over, the date of separation is the date the couple first began to live separate and apart.
===Being separated while living togetherSeparation and divorce===
===DesertionSeparation and children===
===Separation and children=Reconciliation==
<blockquote><blockquote><tt>(b) A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated</tt></blockquote></blockquote><blockquote><blockquote><blockquote><tt>(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse's own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or</tt></blockquote></blockquote></blockquote><blockquote><blockquote><blockquote><tt>(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.</tt></blockquote></blockquote></blockquote>
In other words, a married couple may attempt to reconcile and can resume a cohabiting relationship for a maximum of 90 days without stopping the clock on separation as a ground of reason for a divorceorder. If a couple have lived together for more than 90 days since the first separation, the one-year clock will start again at the end of the last period in which they lived together as a married couplespouses.
The 90 days needn't be consecutive in <span class="noglossary">order</span> to stop the clock. If you are claiming separation as the ground of reason for your divorce, you cannot have resumed your relationship with your spouse for a ''total '' of 90 days within the one-year period of separation.
===Unmarried spousesThe ''Family Law Act''===
Because unmarried couples don't need to get divorced, the ''[[Family Law Act]]'' has no similar provisions doesn't talk about divorce, it also doesn't talk about separation and attempts at reconciliation, except in relation to reconcile. The one exception to this general rule has to do with the division of propertyand debt under Part 5 of the act. Section 83(1) says this:
<blockquote><tt>(1) For the purposes of this Part, spouses are not considered to have separated if, within one year after separation, </tt></blockquote>
<blockquote><blockquote><tt>(a) they begin to live together again and the primary purpose for doing so is to reconcile, and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) they continue to live together for one or more periods, totalling at least 90 days. </tt></blockquote></blockquote>
<blockquote><tt>(2) Nothing in this Part affects a division of property under an agreement or order in a circumstance where, after the agreement or order was made, spouses live together and then separate again.</tt></blockquote>
These provisions are important because the date of separation is the date when new property and new debt stop being shared family property and family debt and start being each spouse's separate property and debt. The general effect of this section is to reset the date of separation when spouses have resumed living together, so that the date that family property and family debt stop accumulating is moved to the next time the spouses separate. However, if the spouses have made an agreement or got an order about the division of property between the date they first separated and the date they reconciled, that agreement or order is still good.
==Things to think about after separation==
Once you've separated, there a number of things you may want to do, change, or adjust to reflect the your new circumstances of your relationship with your spouse. In general, you need to protect your privacy and safeguard your financial interests.
===Bank accounts and credit cards===
You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling their authority.
Credit cards, loans, and lines of credit can often be capped by telling the bank to make the accounts ''deposit only''. This will mean that no more withdrawals can be made and the only transactions that can take place are deposits. You could also tell the bank to reduce the credit limit on any joint debts to the current balance on the those <span class="noglossary">accountaccounts</span>.
===Insurance policies, pensions and RRSPs===
You may wish to change the beneficiary of your insurance policies, pensions, and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary on such an <span class="noglossary">account</span>, your bank or insurance company may require your spouse's consent to remove their name as a beneficiary.
===Jointly -owned real estate===
Most spouses own real estate as “joint tenants”tenants. " The essential feature really important aspect of this type of joint ownership is that if one of you the joint owners dies, then the surviving party will owners continue to own the entire property. This is different from the other type of joint ownership, a "tenancy in common." When a joint owner who is a tenant in common dies, their share of the property goes to their estate to be distributed according to their Will.
The ''[[Family Law Act]]'' says that when you separateon the date of separation each spouse is entitled to their share of the family property and responsible for their share of the family debt, you and your spouse each have an interest in that the spouses take their the other’s share shares of the ownership family property as a tenant ''tenants in common''. Of course, but the Land Title office does not and Survey Authority doesn't know you have 've separated. How your title is legally registered will not automatically change as a result because of your separation.
There are reasons both for and against keeping the ownership of any jointly-owned property registered as joint tenants. If You should get advice from a family law lawyer if you do not want to risk the have jointly-owned property becoming entirely owned by your spouse . You should see a real estate lawyer for help in case of your death, then changing the way that you can change the type of ownership by transferring your interest to yourself. This change must be registered with own the Land Title Officereal estate.
If you've separated but you still want your spouse to receive a gift or appointment through in your Will, you must update your Will and specify that the gift or appointment should proceed be made even after your separationthough you've separated. You should see a wills and estates lawyer for help in making or changing a Will.
===Medical and dental insurance===
Normally, spouses and children are still covered by the other spouse's health insurance for a period of time after separation. Coverage for children usually ends once the children turn 19; coverage for married spouses almost always ends on divorce, but coverage for unmarried spouses may end when the parties stop living together. You should <span class="noglossary">contact</span> the people who administer your insurance plan for more information, as different plans have different rules about the eligibility of spouses as beneficiaries following separation.
For most people, maintaining spousal benefits costs little or nothing. If that's the <span class="noglossary">case</span>, consider leaving your spouse's coverage in place for as long as your plan allows; it will 'll appear rather mean-spirited if you cancel your spouse's benefits. Whatever you do, don't cancel the children's benefits!
===Finances and assets===
When you separate, make sure you take with you or secure make copies of the following items:
*your financial information, including your credit card statements, bank statements, RRSP and investment account statements, and so forth,
*your MSP card and your private medical insurance card, if you have one,
*your immigration or citizenship documents, if you are new to Canada, and
*your passportIf you have children,, consider taking or securing their birth certificates and passports.
You may also wish to take a fair share — half or less than half — of common household property such as the children's clothing, the furniture, and your personal effects. However, it's really important that you proceed with caution. Yes, the odds are quite good that half the household property is yours, but the last thing you want to do after separation is to ramp up the tension with your ex any further. If you absolutely cannot live without the dish set, then take the dish set, but otherwise it may be best to leave the dish set at home. Nothing looks worse than the spouse who takes half the glasses, half the cutlery, half of a dining room suite, and half of the living room furniture. Now, this the following may seem a bit pessimistic, but you should also take make a list of all of the property your spouse owns in their own name and of all the things the two of you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions you and your spouse deal with will do. You can collect that information by writing down the names and addresses of the people who are sending your spouse statements; you don't even have to open the envelopes, which is something you should probably avoid in any event. This information could prove invaluable if you wind up in an <span class="noglossary">argument</span> about who owns what or about the extent of the family property and family debt. ===Personal privacy=== You should also change the passwords or access privileges for your: *smartphone, smartwatch, tablets, computers and other devices,*home wifi router and personal hotspots,*home security and surveillance systems, especially security cameras, electronic doorbells and electronic locks,*wifi-enabled appliances, fixtures and outlets,*internet, cable and telecommunication service providers,*email accounts, social media accounts and gaming accounts, *subscription-based accounts, like Netflix, Spotify and Crave, and*business accounts and services, including electronic banking, credit card and money transfer services, accounting and bookkeeping software, and communication and conferencing services. You may also want to disable any location-sharing options or services that may be available for your smartphone, smartwatch and car, or be built-in to your social media accounts.
==Sex and new relationships after separation==
A lot of readers people have questions about the consequences of sex after separation. The discussion that follows is about sex with spouses, sex with people other than spouses, new relationships, and how a married spouse person can be find themself in a an unmarried spousal relationship with someone else while still being married.
===Sex with spouses===
There are, generally speaking, no legal consequences to having sex with your spouse after you've separated. While it might cause some emotional difficulties — — such as prolonging the amount of time it takes to recover from a relationship that's broken down — — there is 's nothing legally wrong with having sex with your spouse. Most people would say that there's nothing morally wrong with it either.
Having sex with your spouse after separation will not have an impact on how the care of the children is managed, the amount of child support to be that is paid, whether spousal support should be paid, or how your property and debt should be divided. The court does not look into this sort of conduct in determining these issues.
However, two things that married spouses probably need to think about are these:
===Sex with other people===
Just like having sex with your spouse after you've separated, there's nothing wrong with having sex with someone ''else '' after you've separated. (In fact, that may be a much better idea than having sex with your ex.) Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider the romantic, marriage-like aspect of the relationship to have concluded, and your obligation to remain monogamous faithful along with it. Married spouses wonaren't be divorced until they get a court order, of course, but , after separation , the marital aspects of their relationships, and the attendant expectations of monogamy, will be considered to be at an end.
Having sex with someone else will not have an impact on how the care of the children should be managed, the amount of child support to be that is paid, whether spousal support should be paid, or how the family your property and debt should be divided. The court does not consider this sort of conduct in determining these issues.
====Is it adultery?====
Adultery is a problem only an issue for married spouses. Technically speaking, it is in fact adultery to have sex with anyone other than your spouse for so long as you are married. You will , even if you're separated, and you'll remain married until you have obtained an order for your divorce.
====Can it be a ground of divorce?====
You cannot sue for divorce based on your own adultery. Now, if it's ''your spouse '' who has had sex with someone other than you following separation, you can use their adultery to get ask for a divorce order as long as you haven't already claimed a for divorce for another reason like separation.
===New relationships===
New romantic relationships are treated in exactly the same way as new sexual relationships: the courts will not normally be concerned with a new relationship unless your new partner could is somehow be seen as a genuine risk to the children.
Entering into a new relationship will not usually have an impact on how the care of the children should be managed and the amount of or on how much child support to should be paid, and it will never may or may not have an impact on whether spousal support should be paid or , and it will never change how your property and debt should be divided. The court does not look at this sort of conduct in determining these issues. Besides, most separated spouses find themselves in new relationships before they are legally divorced.
====What about the kids?====
As a general rule, people you should be a bit careful about exposing the children to new relationships. It can be very confusing for kids to deal with the idea of their parents separating and then have to cope with the idea of see a parent being involved with some stranger who appears to be stepping into the shoes of the other parent.
You should take a lot of care in deciding how and when the children are introduced to your new relationships. In general, older children are more likely to understand the new relationship; relationships, while younger children are more apt to be confused by the new relationship, especially when the new person tries to "parent" the children themselves. Whether we like it or not, society teaches children a very Norman Rockwell/Hallmark Cards stereotypical view of family life: there are two parents, those parents love each other very much, and those parents are supposed to be together always. You should ask any new partner to be sensitive to these issues and to avoid presenting themselves to the children as an alternate parent.
====What if there are a lot of "new" relationships?====
Sometimes a newly separated spouse feels the need to go out and explore their options, so to speak, and engages will engage in a series of short-term relationships. This will be very difficult for children of all ages to deal with, if they're aware it's going on. It's one thing to have your parents' relationship break up, which is difficult enough to deal withmanage, but it's something else entirely to then be introduced to a parade of new people that a parent appears to be romantically involved with . This can be enormously confusing, and potentially lead to resentment and an alignment can encourage the children to align with the other parent.
In general, you shouldn't introduce your children to a new partner unless you are sure of the new relationship and expect to be in it for a good long while. If you're not sure about the longevity of the new relationship, be safe rather than sorry and don't introduce your children to your new partner until you're positive that the new relationship will last.
If you are 're on the other parentside of the table and are worried about your ex's dating habits, you may want to ask for an order or an agreement requiring the parent your ex to be involved in the any new relationship to be in that relationship for a certain amount minimum period of time — — say five or six months at a minimum — — before they introduce the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is suggestedwarranted. Before you interfere with things, make sure that your concerns about the children are well-founded and are based on their interests rather than on your own emotional reaction to your ex's new relationship.
===Becoming an unmarried spouseNew spousal relationships===
If you are separated from your ''married spouse'', you are still married and will continue to be married to that person until you get a divorcedivorced. If you start a new romantic relationship while separated from your ''married spouse'', this your new partner can become your ''unmarried spouse'' spouse if:
*you live with the new person in a "marriage-like relationship" for more than at least two years, or *you live with the new person for less than two years but have a child with the new person. It does not matter whether you're divorced or not.
This carries some important consequences. If you find that you're married and also but in a new relationship that qualifies as a spousal relationship:
*you may have an obligation to pay child support for your new partner's children as a stepparent,
*you will have an obligation to support any children you and your new partner have together,
*you may have an obligation to pay spousal support to your new partner, should you separate, and
*there may be a requirement you will have to share family property and family debt with your new partner, should you separate. These obligations are in addition to whatever obligations you have to your married spouse and any children from your marriage. <!---HIDDEN ==Further Reading in this Chapter==
==Resources and links==
===Legislation===
* ''[[https://canlii.ca/t/8q3k Family Law Act]]''* ''[[https://canlii.ca/t/551f9 Divorce Act]]''
* ''[http://canlii.ca/t/840g Estate Administration Act]''
* ''[http://canlii.ca/t/84g0 Wills Variation Act]''
* ''[https://canlii.ca/t/8mhj Wills, Estates and Succession Act]''
* ''[https://canlii.ca/t/849l Power of Attorney Act]''
===Links===
*[https://www.clicklaw.bc.ca/resource/4639 Separation & Divorce] from the Legal Services Society’s Family Law website*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help/pas Parenting After Separation course] from the BC Ministry of Attorney General* [https://www.familieschange.ca/ Families Change] website from the Justice Education Society of BC and BC Ministry of Attorney General*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help Support and Resources for Dealing with Separation and Divorce] website from the BC Ministry of Attorney General ===Resources=== *[https://www.clicklaw.bc.ca/resource/1058 "Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce"] from Legal Aid BC*[https://www.clicklaw.bc.ca/resource/1126 Separation and Separation Agreements] from Dial-a-Law by the People's information page on Law School*[https://www.clicklaw.bc.ca/resource/1127 Deciding Who Will Move Out When You Separate] from Dial-a-Law by the People's Law School*[https://www.clicklaw.bc.ca/resource/1529 "Separated with Children - Dealing with the Finances: Parent Workbook"] from the Justice Education Society of BC*[https://www.clicklaw.bc.ca/resource/4126 "Coping with Separation Handbook"] from Legal Aid BC * [https://www.clicklaw.bc.ca/resource/4282 MyLaw BC Make a Separation Plan Pathway] from Legal Aid BC *[https://www.clicklaw.bc.ca/resource/2751 "Separation Agreements: Your Rights and Options"] from Legal Aid BC and West Coast LEAF *[https://www.clicklaw.bc.ca/resource/4139 Parent Guide to Separation & and Divorce]from the Justice Education Society of BC*[https://www.clicklaw.bc.ca/resource/4242 "Legal Health Checks: Breaking Up - Without Court"] from the Canadian Bar Association *[https://www.clicklaw.bc.ca/resource/4648 Going Through Separation] from Legal Aid BC *[https://www.clicklaw.bc.ca/resource/4494 "How to Separate" online course] from the Justice Education Society of BC*[https://www.clicklaw.bc.ca/resource/4760 "Ending Relationships" video] from John-Paul Boyd, QC
{{REVIEWED | reviewer = [[JP Boyd]], 25 26 March 2020}}
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