Generally, when you think about the break down of a relationship you think about the former couple going their separate ways, and one of the parties moving out of the home they share together. However, this is not always the case. For a variety of reasons, including exploding real estate costs, a desire to maintain the status quo for any children in the relationship, or any number of other factors, some couples choose to remain under the same roof even after they separate or end their common law relationship.

Legally, a couple is deemed to have separated when they are living “separate and apart”. However, what does this really mean in the modern context, when the above factors work together to keep a former couple living in the same home even after they break up?

Is it living in different homes? Is it engaging in different social circles? Determining if a couple has truly separated is sometimes difficult, given the complicated nature of relationships.

Separation for the Purposes of Getting Divorced

Before married couples can get legally divorced in Canada, they must first be separated a minimum period of one year. It is only after this one-year period that a couple can file for divorce. This is a rule under the Divorce Act, which is a Federal Statute. That means that this rule applies across Canada: everyone who wants to get a divorce in Canada must live separate and apart for a minimum of one year.

It is common place to think that being separated means you live in different houses, live totally different lives now, and do not communicate. However, it is not always that straight forward. Because of the importance of the date of separation (i.e. the date on which a couple is legally deemed to have separated), sometimes the court must step in and determine what date the couple actually ended their relationship, and consider factors specific to that case.

This become particularly important in situations where a separated couple continues to live in the same home. In such instances, the court will examine these factors to determine whether the couple is, in fact, separated.

Separate and Apart – Factors to Consider

The courts often use legal tests when answering questions of law. In trying to determine whether a couple is truly living separate and apart while living under the same roof, the court will consider a number of factors, including:

  1. Are the spouses occupying separate bedrooms?
  2. Is there an absence of sexual relations?
  3. Is there little, if any, communication between the spouses?
  4. Does the wife provide any domestic services for her husband?
  5. Are the spouses eating meals separately?
  6. Do they have any social activities together?
  7. Is there a valid reason for them living under the same roof?

These factors are not exhaustive, which means that the court may consider other factors. It is also important to remember that not all these factors need to be present to determine if a couple is living separate and apart.

Where just one of these factors is present, a couple will not necessarily be deemed to have separated. There must be both a physical separation and a withdrawal from the marriage. This means that the couple has the intent of separating, even if there is no formal declaration that they are separating.

Separation in Common-Law Relationships

Common-law couples do not have the same concerns about the date of separation and whether they are truly separated. Unlike married couples who must divorce to legally end their relationship, common-law couples do not need to proceed with any legal action to bring the relationship to a formal end. However, if a couple has lived together for a lengthy period of time, or if they have children, or if they own property together, separating can be a bit more complicated.

Common-law couples do not need to be living separate and apart in order to separate. There is no 1 year time limit like there is with divorce. Where separating becomes complicated is when there is division of property, child support, and spousal support. Common-law couples do not have the same division of property rights that married couples have. Their homes do not get special status, like the matrimonial home. There are options for common-law couples to deal with these types of issues, one of them includes signing a separation agreement.

Important Things to Keep in Mind when Separating

If you and your spouse decide to separate, and one of you moves out of the home you shared, there would be no need to go through this test. You are already physically separated, and there is likely the intention to separate.

Separation has to be continuous for at least 1 year. That means if you move back in, or resume activities that are considered part of the marriage for a few months, and then decide to separate again, the separation date would be when you move out for the second time. If you are living under the same roof, if would occur when the relationship ends, you begin withdrawing from the marriage, and there is some sort of physical separation.

Living under the same roof does not necessarily make separation complicated, it all depends on the couple and how they decide to go about the separation. Many couples live under the same roof because of economic necessity. Moving out of a home that one has paid for can be a huge financial burden, so for some couples they have no choice. But that should not prevent them from separating. For some couples, they may want to live under the same roof if they have children and are amicably separating. This allows both parents to have the same access to the children, and there is no need to go to court to get a judge to rule on who has custody and how much access the other parent gets.

Separation can be a stressful time for some couples, especially when they are living under the same roof. The experienced and compassionate team of family lawyers at Borden Family Law is ready to help clients ensure that they are following the correct procedures when separating, and ensuring that they have their timelines right. Our focused area of practice means our clients benefit from our in-depth knowledge of the ins and outs of the family law system, the technical legal rules governing family law matters, and trial strategy. We serve clients in Oshawa, Brooklin, and the surrounding areas. To see how we can help you resolve your issue, call us at 905.576.6090 or contact us below. Ask us about flat fees.