The Amherst News - 2020-03-25


Separated, but living together


Kay Rhodenizer

Living separate for one year gives either spouse grounds for a divorce. The separation date also affects the date from which child and/or spousal support can be claimed, what assets and debts will be treated as matrimonial and what Canada Pension and employment pension contributions will be divided. The Divorce Act provides spouses will be treated as separated for any period they lived apart and either of them intended to live separate from the other although the separation period is not considered to be interrupted by cohabitation for a period or periods totalling no more than 90 days if trying to reconcile was the primary purpose and the reconciliation was unsuccessful. For Divorce Act purposes, a couple can live in the same home but be separated if certain criteria are met. Judges recognize, especially at the beginning of a separation, there may be a variety of reasons for this: a parent may be reluctant to move until there is agreement on when s/he will parent the children or the couple may not have the money to live in separate residences until they’ve finalized their Separation Agreement. Legally, there’s a difference between living together in an unhappy marriage and living together as a separated couple. If a couple continued to live together and disagree on the separation date, judges will look for evidence as to when: •One spouse told the other the marriage was over •The spouses began to sleep in separate rooms •The couple stopped attending each other’s workrelated functions •The couple stopped attending social/community functions together and/or engaging in joint routine daily activities (meals, shopping, etc.) •Either party started dating or formed a new relationship •When one or both parents told the children about the separation •When one or both parties removed the other from his/ her work benefits such as life or health insurance (although I do not recommend this until a family law lawyer has been consulted!) •When either spouse filed a tax return showing his/her marital status separated. This can be evidence of intent to separate even though Canada Revenue Agency will not allow claims for the deductions/tax credits available to separated parties until they live in separate residences. Some separated couples continue to spend special holidays or vacations with their children or jointly attend their children’s activities. This might not be viewed as engaging in a “couple’s activity” if the primary purpose was to act as parents rather than a couple. Occasional sexual relations with an estranged spouse may or may not affect the separation date. Also, if a separated couple attended marriage counselling it can be relevant to determine if the purpose of counselling was to try to reconcile or to work through issues arising from the separation. If you and your spouse disagree on your separation date it is wise to get legal advice to assess what date a judge might use in your circumstances. A Nova Scotia lawyer since 1986, Kay Rhodenizer grew up in Lunenburg County and recently moved to New Minas. As counsel at MDW Law, Halifax ( she represents clients across Nova Scotia focusing on family law and estate dispute resolution. She can be reached at


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