09 March 2015

All About Separation: The 2015 Edition

On 3 March 2012 I posted a short article called "All About Separation," which addressed a bunch of questions I am often asked about the mechanics of separation. The post has since become the most frequently read article in this blog with 235 comments and 65,192 pageviews as of writing, dwarfing the next most frequently read article which had a mere 58 comments and 35,323 pageviews. However, lots has happened since 2012, chief among which was the introduction of the Family Law Act in 2013 and the repeal of its predecessor, the Family Relations Act, and it seemed to me that an update was long overdue. This is that update. Read on!


A lot of the people who find my wikibook and this blog have questions about separation. How do I separate? When am I separated legally? Can I see other people after I've separated? In this post I'm going to try and answer these and other questions. If I haven't answered your question, post a comment.

What is separation?

People in a serious relationship separate when one or both of them decides to end the relationship. People that are just dating break up. Normally, we think of married couples or couples who are living together as "separating" when their relationships end, probably because most of the time someone winds up moving out.

Separation is an important event under the Family Law Act, because the date of separation is:
1. the date when married and unmarried spouses get a right to a half-interest in all of the family property; 
2. the date when married and unmarried spouses take a responsibility for half of the family debt; and, 
3. the start of the two year period within which married and unmarried spouses must start a court proceeding to divide property and debt under the act.
Separation may also affect whether you are a child's guardian or not. Under s. 39(1), the parents of a child are deemed to be the child's guardians while they live together or after they separate. However, if you separate before the child is born, neither of the parents will be the child's guardian until a court makes an order appointing one or both parents as guardians. Ouch.

Hey, you just talked about "unmarried spouses." What do you mean?

People usually talk about couples in unmarried, long-term relationships as common-law spouses something similar. Even though most federal laws talk about common-law partners, "common-law" is actually wrong, and a bit misleading.

Once upon a time, a couple could get married without the need of a priest, rabbi, imam or marriage commission to utter an incantation and waive a wand. They could get married, simply by agreeing to stay with each other and be faithful to each other in the presence of witnesses. That was an old, now extinguished right under the common law. Hence the phrase "common-law spouse."

However, as I've said, this right is long since gone. All that counts now under the Family Law Act is whether you qualify as a spouse. Under s. 3 of the act, you are a spouse:
1. if you are married to someone else; 
2. if you've lived with someone in a romantic relationship for at least two years; or, 
3. for some but not all parts of the act, if you've lived with someone in a romantic relationship for less than two years but have had a child with that person.
How do I separate?

A couple is separated once one or or both of them has made the decision to end the relationship, said so, and then done something to carry through on the intention.

Often the decision to separate is made by both people, but it only takes one person decide to end a relationship, and a decision to separate doesn't require the other person's agreement. Everyone is entitled to separate if they wish to end a married or unmarried spousal relationship.

How do I know if I'm separated?

That's a tough one, because "separation" isn't defined in the Family Law Act. However, s. 3(4)(b) gives some guidance. It says that the court can consider "communication, by one spouse to the other spouse, of an intention to separate permanently" and "an action, taken by spouse, that demonstrates the spouse's intention to separate permanently" in deciding whether and when a couple have separated. In other words, the court can look at things you've said and things you've done to decide whether the relationship is over.

In general, the court will look at all of a couple's circumstances to decide whether they've separated. Has the couple stopped going out together? Have they told their friends that they've separated? Have they established separate bank accounts? Have they taken steps to deal with joint debt? Have they moved into different homes? Have they signed or started working on a separation agreement? Have they stopped having sex and spending the night with each other? Some separated couples will have done some of these things, others may have done them all.

Can we stay living in the same home?

Although many people move out when they separate, others separate and remain living under the same roof. In fact, s. 3(4)(a) expressly says that spouses can be separated even though they continue to live in the same home. A physical separation is not necessary to separate.

Frankly, continuing to live together isn't a bad idea as long as you can stand the company. It's a lot cheaper to stay in the same home with one set of bills than to move into two different homes each with its won set of bills to be paid.

Can I take stuff with me when I move out?

Sure, but be nice about it. Yes, you have a right to half the family property, which could include half the glasses, half the pots and half the furniture, but don't be mean and take half of these things to break up the sets. If you can't afford to replace the pots and pans, the cutlery, the plateware, the glasses and so on, take any extras first.

Also, don't take more than half of the family property unless there is no way to avoid it. This generally isn't a rush and the division of property and debt will be taken care of eventually. If your ex trashes the family property you leave behind, your ex can be made to compensate you for your share in any property that's been disposed of.

What you can certainly take is your own clothes and personal effects, anything your ex agrees you can take, and, if you have kids, a share of the children's clothing and toys.

Do I need to see a lawyer to separate?

No, absolutely not! The job of the family law lawyer is to help you resolve any legal issues resulting from the end of your relationship. The decision to separate can have legal consequences, and you might consider meeting with a lawyer to talk about those consequences, but separation itself is nothing we can help with.

But what's a legal separation?

There's no such thing as a "legal separation." (There used to be something called a "judicial separation," but that hasn't been available for a long time now. For more information about that, see my post "Little Known Family Law Facts #4".) Once you or your spouse or partner has left the family home or announced that the relationship is at an end, you're separated.

There are no special legal documents to sign or file in court to become separated, and there is no such thing as a legal separation in British Columbia.

Okay, so what's a separation agreement then?

What people often mean by legal separation is a separation agreement. This is something else altogether. A separation agreement is a contract that people use to record their agreement about issues like how the children will be cared for, how their assets and debts will be divided and so forth. It has nothing to do with whether a couple have separated or not.

Separation agreements are not always necessary, especially if there's nothing to agree on, and you can't be forced to sign a separation agreement. See the Separation Agreements chapter of my wikibook for more information.

What's the date of our separation if we can't agree?

Married spouses rarely argue about exactly when they separated. This issue most frequently crops up for unmarried spouses because of the time limits on claims for spousal support and the division of property and debt under the Family Law Act begin to run from the date of separation. For married spouses, these time limits begin to run from the date of divorce, which can be many years after the date of their separation.

Married spouses have no limitation periods to ask for spousal support under the Divorce Act.

The courts have talked about how to decide the date of separation. In Routley v. Paget, a 2006 decision of the British Columbia Supreme Court, the parties maintained a sexual relationship after they'd moved out and into separation homes. The court held that the date they moved out and separated their families was a "marked change in the nature of the parties' relationship," and that the nature and frequency of their continuing contact did not constitute "either a continuation of the marriage or ... a cohabitation with reconciliation as its primary purpose."

A few other cases have also considered this issue. In Herman v. Herman, from the Nova Scotia Supreme Court in 1969, the court said this:
"[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 order 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." 
In Hills v. Hills, another case from the same court in the same year, the court said:
"[T]he words 'living separate' connote an attitude of mind in the spouses in which they regard themselves as withdrawn from each other." 
In McDorman v. McDorman, from New Brunswick Supreme Court in 1972, the court said:
"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, specially 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." 
Simplest of all, the Ontario Court of Appeal in 1970 in a cased called Lachman v. Lachman said:
"A marital relationship is broken down when one only of the spouses is without the intent for it to subsist." 
What's desertion? 

Desertion is an old statutory ground of divorce, established in the 1857 Divorce and Matrimonial Causes Act, that arose after one spouse had abandoned the other for at least three years "without just cause." This ground of divorce has long since been abolished. These days we just rely on separation for a period of at least one year to get a divorce order.

Can I still have sex with my spouse after we've separated?

Sure you can. There are, generally speaking, no legal consequences to having sex with your spouse or partner after you've separated. While it might cause some emotional difficulties, like prolonging the amount of time it takes to recover from a relationship that's broken down, there's nothing legally wrong with having sex with your spouse or partner. 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 court decides that the care and control of the children should be managed, whether and how much child support or spousal support should be paid, or how your property and debts should be divided. The court does not look into this sort of conduct in determining these issues.

The only thing you really need to think about is if you are married and are asking the court to make a divorce order based on your spouse's adultery or cruelty. If you have sex with your spouse after you've made the claim for divorce, you could be considered to have forgiven your spouse for his or her conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on his or her adultery or cruelty.

Can I start a relationship with someone else after we've separated?

Yup. 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. Separation is partly defined as leaving a spouse with the intention of ending the relationship. Once you've separated, the court will consider your relationship to have ended and whatever obligation you have to remain monogamous along with it. If you're married, you won't be divorced until you get a court order, but the marital aspects of your relationship 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 court decides that the care and control of the children should be managed, whether and how much child support or spousal support should be paid, or how your property and debts should be divided. The court does not look into this sort of conduct in determining these issues.

Is having sex with someone else after we've separated adultery? 

Only married spouses can commit adultery. If you're married it is technically adultery to have sex with anyone other than your spouse while you are married, even after you've separated. However, while having sex with someone else might constitute adultery, the court won't care whether you've committed adultery or not. As far as the courts are concerned, if your relationship is over, go ahead and do what you'd like. No one apart from your ex and your in-laws are likely to criticize you for it.

Can sex with someone else after separation be a ground for divorce?

Only married spouses need to get divorced. You cannot sue for divorce based on your own adultery. However, if your ex isn't happy that you're having sex with someone else, you are technically committing adultery which could be used as a ground for divorce.

Speaking of adultery, is it a criminal offence? Can I be charged with adultery?

Adultery on its own is not a criminal offence; it's not something that can see you can be criminally charged for.

50 comments:

  1. Please help me, in 1999 I went to family legal aid to get a legal seperation and custody agreement and we have not been together since and our son is now 17 and yes at that time it was filed in court. I am now looking at getting a divorce as my new partner and I are looking at getting married in 2016. I am a little concerned though as my new partner and I have bought a house last year 2014 and once I file for my divorce can my x husband take me for half the new place? I am thinking that because we filed 16 years ago in court he can not get try to get more out of me is this true?

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    1. You really should get some legal advice on this issue. Spending $200 for half an hour of a lawyer's time will be well worth the information and peace of mind you'll get.

      I think you should be okay, however. Under the old Family Relations Act, property had to be "ordinarily used for a family purpose" before the other spouse was entitled to share in it. Under the new Family Law Act, the other spouse is only entitled to share in property acquired during the relationship, or property acquired after the relationship using property acquired during the relationship. Either way, your ex would have to show that you used property he was entitled to share in when you bought the house. However, this wouldn't give him a half share of your new house, just a share in the equity in your new house that can be traced to property he would have had an interest in.

      Please, go see a family law lawyer in your neighbourhood for some proper advice. You've got a lot riding on the answer to your question!

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    2. Thankyou JP, This is helpful & useful information.

      My situation is very raw.

      Do I have legal rights to prevent the affair from continuing?

      Here are some details:
      My wife had an 'exit strategy' back in October, last year ('14). We lived in BC at that time; she had (and still has) a job in Alberta. She was simply "tired of the fighting" between us.
      In the Fall, Jill, my wife of five+ years, started spending one week /month in Alberta; siting "with the Alberta economic shift, I need to be in the office to show my dedication to the job (at AB Health Services).
      In January,
      She stayed over two weeks in January; and also announced her desire for 'space'.
      In February, she announced that she had secured an apartment in Alberta; as well, she will have to spend three weeks each month there, in order to get enough hours to pay her bills.
      In March, on the 27th, she announced her desire to be separated.
      On April 16th,over the phone, she expressed that she is "Done" with the marriage; that she is moving on, and wants me to know that.

      On May 13th,
      I learned the heart breaking news, that Jill is in a romantic relationship with Jason - - my best friend of 18 years. He has been married for 17 years, to a woman who cannot have children.
      Jason has a truck; and has been helping her move since January.

      On Sunday, May 24th,Jill and I were having a discussion, in person, about the direction of things.
      Jill stated that she is continuing in her romantic relationship / affair with Jason. She then told me that she is pregnant. About six or seven weeks along.

      I confronted Jason on May 26th, and May 28th, in person. I communicated with him my need to heal. And his own wife's need to heal. And requested that he cease physical contact with my wife; but, to be reasonable, that he can support her pregnancy over the phone with Jill.

      Do I Have Any Legal Rights / Grounds to enforce ceasing their physical contact?

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    3. Wow. This is a horrible situation you find yourself in; you have my sympathies, and I think I understand where you're coming from.

      However, as a far as the law is concerned, the court is not likely to make an order restricting your wife's contact with your friend. You don't have the right to restrict how your wife chooses to spend her time. Once upon a time, there were certain kinds of civil suits you could have brought, for things like the alienation of affection, criminal conversation and the restoration of conjugal entitlements, however these causes of action have been extinguished by provincial legislation for more than thirty years. The choice people have in place of these old civil suits is to separate and, if people wish, divorce.

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  2. how is spousal support determined, when the parties separate and one party starts a new relationship and is residing with that person, and the courts haven't resolved matters todate and it's been 3.5 years. Note: immediately after separation, the individual moved in with this person. Do the courts factor in the other persons income, just reduce the amount, and or reduce the years or all/any of the above? This situation is such as the other spouse wouldn't settle, to allow the individual to obtain their own residency.

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    1. The new relationship and the new person's income generally aren't considered. Spousal support is a complicated subject, but I cover that in pretty complete detail in my wikibook here:

      http://wiki.clicklaw.bc.ca/index.php/Spousal_Support

      Although this'll give you some helpful information, you'll still probably have to go see a lawyer to find out how the information applies to you in your specific situation.

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  3. Me and my ex were together on and off for 6 years and we have 3 children together but then he assaulted me and sent me to the hospital and now we have been separated for 6-7 months now. I was wondering when can I get all his stuff out of my house? and I have asked him to move it and he said he will after court but criminal court gave him permission to get his tools and belonging along time ago.

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    1. If the criminal court has given him permission to come and get his stuff, he has no excuse to delay. Assuming that there's no time limit on the order, I'd give him a deadline and tell him that you're going to toss his stuff if he doesn't make arrangements to come and get it. If the order has expired, I'd wait because he can't come to your house to get his stuff.

      As far as *actually* tossing his stuff goes, speak to a lawyer in your neighbourhood first to get some proper legal advice.

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  4. My husband and I separated several months ago. Due to mental/emotional abuse, I could not remain in the home. Since that time, he has started a new relationship and brings this woman to stay in my home. Is that legal? Is there any way I can keep her from staying in my home, with my things?

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    1. There's nothing illegal about your husband bringing someone to your home. It's shitty, sure, but not illegal.

      If you have a good reason why she shouldn't be in the house, then you can apply to court for an order restraining your husband from letting her into the house. However, you will have to have an objectively good reason why she shouldn't be allowed in the house.

      It may be easiest, in the short term at least, just to make an arrangement for you to get into the house and get the stuff that you're worried about.

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  5. A quick question:
    How does the law treat a separated couple (48 years married - that have extensive personal holdings and investments/pensions etc) when he has left the marriage and living with another woman for the past 2 years?
    He is separated, but still married, no divorce proceedings have been started between the original couple.
    Should the wife be concerned about his living arrangements and the common law status of his new relationship? Can the new partner make application to secure property of the estate should he die? Can she make claims against the mans existing estate when he is still legally married to his wife?

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  6. A quick question: If a man has abandoned his marriage but remains married - with no divorce proceedings in place - and is now living with another women, for the past 2 years, is there any laws supporting the woman's rights who has been living with him?
    How can/should the ex-wife (no divorce proceedings have started yet) protect herself? Is she protected by their marriage contract even though he is living with someone else?

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    1. The Family Law Act says that a "spouse" is someone who is married to a person or someone who's been living with that person in a marriage-like relationship for at least two years. The act is NOT written to limit a person to having only one spouse at a time. As a result, someone who's married can be a spouse with the person to whom he or she is married while being a spouse with someone else that he or she lives with.

      Being a spouse is important for the FLA, because it's only spouses who have the right to ask for spousal support and the right to a division of property. There are limits, though, on what can happen, especially about property. The property spouses share under the FLA is the new property that accumulates during the marriage and the increase in value of property brought into the relationship, ending at the date of separation. In theory, the property interest of Spouse #2 should be different than the property interest of Spouse #1, as long as the two spousal relationships happened one after the other rather than at the same time, as it would be if everyone was living together at once.

      Spousal support is a bit of a problem, since both spouses would be looking to be paid from the same income, assuming both are entitled to receive spousal support. That may wind up reducing the available income from which spousal support can be paid, with the first person to be awarded spousal support getting paid out of the total income and the second person getting paid out of the remaining income.

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  7. Hi, I'm having trouble finding a clear answer to this: I am a Student and depend on my spouse for financial support. In the previous year my spouse co-signed a loan for me. During that year I discovered infidelity. Now we do not know if we will reconcile, we tried therapy but found it did not help and stopped going. My spouse has refused to co-sign my loan for next year as we are not sure of our future. Further, for the past month (since my discovery) we've had to live together as a financial necessity but I am moving out (for school) next week where I have to support myself and pay tuition. We haven't told friends or family but our lives are quite separate (we have different groups of friends and for much of the time, live in different cities). My spouse is also still in contact with the third party, although insists the sexual relationship has stopped. We are in limbo deciding whether it's worth trying to save our marriage but I am in dire financial need. Can I apply for Student Assistance as separated?

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    1. I'm afraid I don't know the answer to your question. The student loan people will have their own rules about what counts as separated and what doesn't. Normally, a couple can be separated and still living under the roof and qualify as separated. However, there's a benefit attached to being separated as opposed to being in a spousal relationship, and I'll bet that the student loan people wouldn't consider you to be separated until you have a separate mailing address.

      Place an anonymous call to the student loan people and get the answer straight from the horse's mouth. They're not going to care about the infidelity thing, all they need to know is that you and your spouse have split up but are still under the same roof from financial necessity.

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  8. This is the first time I have ever read anything about separation and divorce although I am sure she has. We have been married for 20 years and have three kids. The new laws are great! ,,,,if you have no heart. There is nothing at all about love, honor and respect in them ..at all ...but the good news is your legal! ...How horrid. No one understands honor anymore... Great article though if you have to find out the truth. Thank you.

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  9. John-Paul Boyd,
    Appreciate this very much as it's so helpful, even in the redirection as to whether or not it's time to secure further legal advise. Much appreciated. Kathy Welter

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  10. Hi John:

    Is there a statue of limitation for pursuing a non disclosed asset after a signed SA? I am suspicious of this but have no firm proof. If there is a limit, does it depend the province? thanks in advance.

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    1. Any limitations on the division of property will depend on the family law legislation of the province you're in and the exact language of the separation agreement. Fraud or trickery, like not disclosing the existence of an asset, may allow you to avoid these limitations. Some provinces have limitations legislation that impose an absolute limit on the amount of time that can pass before a claim is pursued, whether fraud was involved or not.

      Limitations questions are tricky but important. You should speak to a lawyer in your neighbourhood to get some proper legal advice. Make sure you take your separation agreement with you.

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  11. i have been separated from my husband for 6 years we have remained friends and have had regular contact with each other he has dementia and his family have put him in a home they now dont want me to visit him have i still got the right to see him we never divorced

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    1. I'm really sorry to hear about your situation. Honestly, I don't know the exact answer, but I think that it has to do with who has power of attorney for your husband now. Whomever is entitled to make decisions for him can make decisions about who he sees, which may include you. You should speak to a lawyer who does a fair bit of elder law; he or she should be able to give you some proper legal advice.

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  12. Hi , in British Columbia is there a 6 year time limit for property division when you're not divorced?

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    1. No. Section 198 of the Family Law Act says that you have two years from the date of divorce to apply to divide family property.

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  13. Hello I have a question, that has been on my mind for a while ok.. I have been legally married for 5 years,but in February of 2012 my husband beat me up sent me to the hospital when I was 5 months pregnant with his daughter. I pressed charges and he ended up going to prison in November of 2012. He was released in August of 2014. All that time he was in prison I was living with my parents raising my daughter on my own. Since he's been out he hasn't tried to see her. In the beginning of 2015 I met a great man and he asked me to move in with him so I did. So my question is, can I get in trouble with the law for living with another man while still being married even though I was in a abusive marriage and have been separated since 2012 to December 2015?? Shold I be worried at all? Thanks

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    1. To be completely frank, "the law" could care less about the decisions you make in your personal life. Once upon a time, adultery was a criminal offence and your husband could sue you for an order requiring you to live with him, as the old laws about marriage required. However it's now 2015 and, assuming you live in British Columbia and not a country governed by fundamentalist religious laws, you're just fine. Don't worry about it.

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  14. My wife and i wants to separates and we have 2 kids. I'm the one who moved out because if i don't, she will but since we are living in her sister's house, i voluntary left and now living with my friend. Now, it seems that whenever im visiting my kids during my day's off from work in my sister in law's house, they are very tentative to give me my kids which i know is not right.
    My question is, i want to rent a place for my kids away from my in-laws but my wife doesn't want to leave her sister's house....is there any legal way to make that happen?

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    1. After a couple splits up and has moved out, it can be pretty hard to make one of them change the place they've moved out to, unless the person with the kids has moved too far away or made a really bad choice that's obviously not in the children's interests, like moving in with a drug user or pedophile. However, if the person with the kids has moved in with a relative who's not a drug user or a pedophile, you'll need some other good reason why the environment is not good for the kids before a court is going to order the person to move, and merely making you uncomfortable isn't a good reason.

      Off hand, the solution to the problem might be to arrange a formal schedule of time with the kids, either by a separation or a parenting agreement or by court order. That will eliminate any uncertainty about your time with the kids and the relatives will be less able to interfere.

      You should speak to a lawyer in your neighbourhood and get some proper legal advice about this before you do anything.

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    2. Thanks for the speedy respond.

      The only thing my wife told why she don't want to moved out is she can't handle all the expenses like rent, nanny etc. but i told her that i will shoulder almost the expenses just for me to have the comfort of bonding with my 2 kids freely. Surely, one of her reason for not teying to move out is because her sister loves my youngest daughther. Just an added info, my father-in-law is also living in the house but too old to take care of kids and i am paying a nanny to go to the house during the days that me and my wife are at work. My sister in law also works on weekdays. So, im thinking that there's no use to stay on that house for me being uncomfortable with the situation. I rather rent a place for them and still, hire the nanny so there will be no uncomfortable situation happen.

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  15. A

    If my husband and I are separated for the last 6 months but are still living in the same house...he won't leave and keeps prolonging his stay ...will this affect my child support or baby checks if I make an application for them? We are completely separated except that we are still under the same roof. Thanks

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    1. Continuing to live together may affect your government payments and tax credits with respect to the child and your present -- but not your future -- entitlement to child support.

      With respect to the government payments and credits, if you were getting them before you'll continue to get them. I expect that the amount you receive will increase if government looks at just your income as a single person. However, I don't know that government considers you to be separated unless you've moved out. Revenue Canada should be able to answer this question for you.

      With respect to child support, you and your husband had an obligation to support the child while you were together and after you separated. When a couple separates and moves out, the obligation to pay child support is pretty clear-cut: the person who doesn't have the child for the majority of the time pays child support to the person who does have the child for the majority of the time. However, if you're still under the roof and you're sharing all of the household costs -- or he's paying for all of them! -- his obligation to pay child support on top of what he's contributing to the household expenses isn't clear at all.

      You really must speak a family law lawyer in your neighbourhood to get some proper legal advice about your situation and options, especially about child support.

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  16. My husband and I and our adult children are Canadian citizens, acquired more than 10 years ago. When we arrived in Canada 18 years ago, we lived in BC for 18 months on student and dependent spouse/children visas. (We then moved to Ontario and lived there for 11 years.) Now my husband and I live in California and we need to proceed with an uncontested divorce. Both of us plan to return to Canada in the next few months, (to BC and Ontario respectively.) My questions: 1) Does our 18 months as non-Canadian citizens in BC count towards the 12 months residency in BC pre- divorce? If yes, how do we prove that residency? 2) If we can get the paperwork done soon, is it true that the divorce could take less than 6 months if we file in BC (where I will live for the foreseeable future.) I am asking because divorce in California, even for a DIY 1) costs a minimum of $3000 and 2) currently takes about 9-12 months from filing in the court we would file in. By which time neither of us would be here either. Thank you for your very informative site.

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    1. Unfortunately, the one-year period of residency needs to be the one-year period immediately before starting the divorce claim. Section 3(1) of the Divorce Act says this:

      "A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding."

      Sorry. If it's any consolation tons of people get caught between jurisdictions like this and can't file for a divorce. However, before you throw in the towel on California, check to see if where you're living when the divorce is granted makes a difference. Here, it's the period before the claim starts that matters, not where you're living when the divorce order is made.

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  17. Oh thank you so much for that clarification, John-Paul.

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  18. Hi John-Paul, it's is where I'm at.

    * Married 7 years ago… 

    * Purchased house, which about 70% into downpayment

    * we had twin daughters aged 3.5  - he completely left their early years to me alone

    * We are currently Living apart in the same house – he says he won’t go

    * He continues to threaten me with me not be able to go back to my hometown with the children, unless I have sex with him

    * I no longer want to be married to him

    * What are my rights? What can I do?

    * He says he has a SHARK for a lawyer that will rip me to pieces regarding children custody payment and the house

    Also i was wondering if you recommend a family lawyer

    Thank you very much :)

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    1. What are your rights? You have the right to share in the family property; you're likely the children's guardian (so is he); if the kids are with you for most of the time, you have the right to child support; depending how labour was divided during the marriage and your employment circumstances, you may be entitled to spousal support. You MUST speak to a family law lawyer in your neighbourhood to get the details and an idea of the options available to you.

      In the meantime, you can teach yourself a bit about the law. Go check out my wikibook. The "Family Law in British Columbia" page will give you a good overview:

      http://wiki.clicklaw.bc.ca/index.php?title=Family_Law_in_British_Columbia

      Now, as for him hiring a "shark," you can relax a bit. Lawyers who have reputations as sharks, bulldogs, barracuda or anything else with teeth aren't necessarily good lawyers. They take positions that are on the extreme side of things, they'll be very expensive, they'll be in court a lot... but at the end of the day, they don't have success rates that are any better than anyone else. In fact, I'd bet that their success rates are worse.

      If you want, you can call me at the office during the work week at 403-216-0341 and I'll give you the names of a few lawyers.

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  19. My wife moved me and my 1 yr daughter from nova scotia to BC. She flew there a month before me because i stayed behind to pack our house and drive across the country with a uhaul truck. The day after i got there she said it was over and a few days later i found out by accident she was sleeping with a coworker. It is her former boss that she worked for in halifax 2 yrs ago. He got her this job with him and now they both got fired for having an affair in the office. We had to move back to NS and we are now $40 000 in debt. She moved an hour and a half away with my daughter and left me to pay for our house in NS which we were supposed to rent out while we were in BC. I had to take a job in alberta to pay for the house. I never get to see my daughter because i cant afford to fly home. I have the house up for sale but the market is terrible. I now have multiple emails between them that talk about how they are in love and were going to continue this relationship without telling me or his wife. Can I sue her for moving me to BC under false pretenses. They clearly have had this going on for years and this move is going to bankrupt me

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    1. Unfortunately, I don't have an answer to this one. Your spouse getting you to agree to move the family to another province isn't something you could traditionally sue your spouse for, the way you can sue someone for careless driving because of a car accident or for breaking a contract. However, in a family law context, her duplicity makes me think that you might be able to ask for more than half the family assets to compensate you for the wasted expense you've been put to: in other words, you might be able to get your half of the property plus something from her half to pay you back. You really must speak to a family law lawyer in your neighbourhood to get some proper advice about this AND about which province you should go to court in, if of course you wind up unable to settle things and have to go to court.

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  20. hi i've been reading your blog about this seperation case.. what if the guy i am dating with is already separated ? but they're not yet annull or divorce since they've been married. is it possible that the wife could file a case against me? cause i've been starting going out with him and i'm afraid that his wife will use it on court

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    1. In British Columbia, and I suspect the rest of Canada, the wife would have no case against you. There's nothing illegal about dating, whether unmarried, married, separated or divorced, and I can't imagine that she would have a civil claim against you. She can be mad about something, or even bitterly jealous, but being mad or jealous doesn't give her a legal reason to sue you. You should speak to a lawyer and get some proper legal advice if you have any concerns about your situation.

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  21. So I just recently started dated a man who is still married but separated from his wife for six yrs now ..... can she take him to court for alimony once she finds out we're together?

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    1. Your relationship with your boyfriend has absolutely nothing to do with whether his wife is entitled to spousal support, whether you were seeing him while he was still with his wife, after they had separated or after they had divorced.

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  22. I have been married for just over 20 years and share one teenage child. I found myself wanting more and became involved with a another man. He too has been married for just over 20 years however they do not have any children. We have been involved on some level for over two years now and are planning to spend our lives together. The question I have is that we both want to leave our current situations and move in together. We would like to be able to purchase a home and have been approved for a mortgage. My question is once we each leave and separate from our spouses are we able to sign a mortgage ie. do either of our spouses have any claim on property purchased after separation?

    Thank you for taking the time to answer my question.

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    1. There's an answer to this question, but I'm not going to give it to you. What you are both talking about is fairly high stakes, and you DO NOT want to mess this up, and you don't want to find yourselves embroiled in shitty high-conflict litigation over the house you've bought together.

      BEFORE YOU DO ANYTHING, you MUST speak to a family law lawyer. Please. Even if you're never going to use the lawyer for anything else, it's well worth it to you to spend a few hundred bucks on an hour of the lawyer's time. Think of this as insurance... spend a bit now in the expectation of avoiding a messy and expensive problem later.

      If you don't know a good family law lawyer to talk to, call my at my office at 403-216-0341 and I'll give you some names.

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  23. i got married in 1984 then separated in 1994 then reconciled in 1996 and then split up for good in 2004 my question is after being apart for that 1-1/2 yrs does my length of marriage start over from 1996 for spousal support reasons

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  24. I got married in 1984 then separated in 1994 and reconciled in 1996 then split up for good in 2004 my question is does this mean i was only married for 8 yrs when calculating spousal support. I am on year 11 of paying support.can you give me any cases where length of cohabition starts after reconcilliation thx

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    1. The Spousal Support Advisory Guidelines say that the length of relationship is to be calculated from the date of marriage to the date of separation, plus any pre-marriage period of cohabitation that was marriage-like in nature. At most, you're looking at a calculation based on 1984 to 2004. I don't recall that the Advisory Guidelines deals with length periods of separation, but you could argue that the 1.5 yr separation should be deducted from the overall length of relationship or that the period of separation should push the results for amount toward the low end of the range the Advisory Guidelines suggest.

      If you'd like cases on this point, try looking on the CanLII website. If you're having trouble finding them yourself, you'll have to a lawyer or a law student.

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  25. My husband left 6mths ago. We're separated. I want to sell the matrimonial home and move but he won't agree to sign anything. (He is paying half of utilitiesn. No mortgage.) What recourse do I have or am I a hostage until he agrees to sell?

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    1. You can get an order requiring the house to be sold and the proceeds used to pay off the mortgage. If you don't want to do that, you can get an order forcing your ex to contribute to the mortgage. You're not a hostage, but unfortunately if your ex won't agree to a sensible solution, you may not have much choice but to take the matter to court. You should probably try going to a mediator first, 'cause if you succeed there you'll wind up spending a lot less money and getting things wrapped up in a lot less time.

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  26. Good day John-Paul, I separated from my ex 2 and a half years ago (we have one child age 12). We were common law and had a family home which we sold and split the proceeds from. We had been together for approximately 17 years. Our relationship ended due to him having an emotional affair and a serious gambling problem (he would spend $10,000 in one night at the casino sometimes). He has seen our child every other weekend, and during the week sporadically as he leaves it up to our child to contact him to arrange time during the week to see him. He has raised the issue of custody and child support with me, as he has told me if he gets shared custody of our child he won't need to pay child support. I have been my child's primary caregiver since the separation (2.5 years) and our child has lived with me. At the time of separation we had a verbal agreement for child support (he basically said this is what I am going to pay you and nothing more) that for the most part he has paid monthly. I found out recently that based on his income tax returns that he has underpaid me by $10,000.00 for the past few years and now wants custody of our son. I have had a consultation with a lawyer for independent advice who has advised that a separation agreement to address the custody/child support issues and try to reach an agreement would be best, although I have filed for child support and a parenting plan in Provincial Court and have a hearing scheduled a month away. Will a separation agreement with a parenting plan in it be enough that only says that my child "will primarily be in my care", if I have it filed with the courts I am concerned that the separation agreement is a quick fix to a much bigger problem and I am going to be in and out of court on the custody issues (as the ex is upset that I have filed in court for the support and parenting plan) if I don't address everything properly now. Thank you in advance for your time.

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    1. Based on what you've said, it seems really unlikely that your ex would get an order that the child live in his house. You're both guardians of your child, assuming you live in BC, but since you've been the primary care giver and he's been so hands-off since separation, I can't imagine the child living with your ex long enough that he wouldn't have to pay child support. Even if you shared the child's time 50/50, he'll pay some child support so long as his income is higher than yours.

      If you're worried about future child support, a separation saying that the child will be "primarily in your care" won't bullet-proof you from any claims. You'll need to say at least that the child will be in your care more than 60% of the time, but it'd be even better to spell out what the time split will be.

      You have a hearing coming up soon. Why not see what happens? It may be premature to sign an agreement, especially if there are arrears owing. You might want to see another a lawyer for a second opinion.

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