The Family Law Act sets out a regime whereby all of the property owned by spouses at the date of separation is to be shared equally subject to certain exceptions. The spouses are also presumed to share equally any debt which they have at the date of separation.

Because of this it is extremely important to be able to determine the date of separation. Spouses have separated when one spouse expresses to the other a clear intention to end the martial relationship regardless of whether or not there is a physical separation (Latzker v. Latzker 2003 BCSC 229).

Section 83 of the Family Law Act states:

83  (1) 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.
(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.
(3) For the purposes of this Part, property received by a spouse from a trust in respect of the spouse’s beneficial interest in property held in the trust must be considered to be property derived from that beneficial interest.
(4) In this Part, “property” includes a beneficial interest in property unless a contrary intention appears.

The key factor is to determine when the spouses demonstrate an intention to live separate and apart. This may have been by a verbal exchange or a discussion, a written exchange, or by an action.

The intention does not need to be mutual but it must be clearly expressed by one spouse to the other and not later have been retracted. Examples of this could be:

  • Where one spouse tells the other spouse that they no longer wish to remain in the relationship.
  • Where one spouse gives the other spouse an email or a letter stating that they no longer wish to remain in the relationship.
  • Where one spouse physically leaves the family residence and lives separately.
  • Where one spouse leaves the couple’s bedroom to live separately in another part of the house.

All of these may indicate an intention to separate expressed by one spouse to another and the date that this intention was expressed is the date that the spouses family property and debt will be determined.

Deborah A. Todd
Deborah A. Todd