Living Separate and Apart: When Do Relationships Really End?

When getting a divorce in Canada, you must show that there has been a clear “breakdown of the marriage” and grounds for the divorce, without hopes for reconciliation.  While more specific reasons to get a divorce can greatly vary between falling out of love and financial difficulties, the federal Divorce Act states that a breakdown of the marriage will occur by three general scenarios: 

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  1. Separation, the most common reason on which divorces are based

  2. Adultery

  3. Physical and/or mental cruelty

 

Most divorces are based on separation – to get a divorce on these grounds, you will need to establish that you and your spouse have been living “separate and apart for at least one year.” Many times when spouses separate, one of the spouses will move out and live physically separate, however this is not always the case.

Due to some circumstances, perhaps financial or neither spouse wanting to leave the child, two spouses wishing to separate may have to or choose to continue to live together. This “living separate and apart” while still physically living together, is accepted but only if one or both spouses have the intention to be separated and they are truly no longer living as a couple. The spouses should be living more similarly to roommates and compelling evidence of “separation” should be shown to the courts for example; separate rooms, not going out together, closing joint bank accounts, doing separate chores, and more. In these cases, courts will also heavily consider things like financial commitments, social and child-related interactions, sexual activity, and how the couple presents themselves to more accurately establish the separation situation.  Get started on your separation agreement here:

 

So when asking – “Can you be separated, but still live under the same roof?” The answer is generally speaking, if two spouses are living separate lives with the intention to end the marriage – even while living in the same house – this is usually sufficient evidence to establish that the two of you have been living separate and apart, however the courts will look at each case’s circumstances individually.

 

How the period of separation is calculated

The period of separation in order to be grounds for a divorce, is one year. Surprisingly The Divorce Act actually contains clauses designed to encourage couples to stay together. If the spouses attempt to reconcile and get back together, they will not be penalized as this won’t immediately stop the “one year separation” clock. The law allows 90 days in total (consecutive or separated) to attempt reconciliation before it interferes with with the “separation clock”. This means that if spouses tried to reconcile but the attempt lasted less than 90 total accumulated days, there would be no interruption, however if longer than 90 days this would be considered an interruption in the separation, and the one year of living separate and apart would have to be restarted.

 

Your Relationship Status and Your Finances

Keeping your relationship updated is more complicated than updating your Facebook status, when thinking about the people you need to tell about your divorce the Canadian Revenue Agency (CRA) is likely not at the top of your mind. However by keeping your marital status up to date through the CRA, this allows you to maximize any claims to which you're entitled while also preventing any faulty claims being made that might result in you having to give money back to the CRA.

Your eligibility to some government benefits, such as GST/HST credit, working income tax benefit (WITB) payments, and more may be determined by your marital status and net family income based on this status, therefore it crucial update this when changes occur.

You must notify CRA by the end of the month after the month your marital status changed, except in the case of separation.  For example, if your marital status changed in May 2017, you must notify the CRA no later than June 30, 2017. However if you are separated, you are required to wait 90 days after the separation date before making a change. Find out more about divorce and taxes here: