Generally, and unless otherwise agreed by the spouses, the date of separation is when it is clearly made known to the other spouse the relationship is over, and steps are taken in that regard like physically separating, creating separate residences, closing joint bank accounts, etc. What is important is how the spouses hold themselves out to the community including designations on tax returns or for beneficiaries of health coverage, etc. Spouses can be separated and living under the same roof if they are acting more like roommates than spouses. Roommates don’t cook each other meals or do one another’s laundry. Roommates don’t generally go to office or family functions together, or act like they are a devoted couple.
It is on the date of separation that each spouse becomes a tenant-in-common with the other spouse of all family property existing on that date owned by either spouse, or in which either spouse has an interest. That is, each spouse gets property rights in the other spouse’s property (subject to excluded property). Each spouse is also equally responsible for family debts regardless if the debt is in one spouse’s name only. Therefore, if you win the lottery after the date of separation you probably won’t have to share it with your estranged spouse, but if you win it during the relationship then you probably will have to share.
Further, on the day spouses separate, any designations they have in a will or power of attorney naming the other spouse as beneficiary or administrator is cancelled by law. Therefore, reviewing your estate plan upon separating from your spouse would be prudent including any beneficiary designations in RRSPs, employment health plans, etc.
The date of separation also triggers a limitation period for non-married spouses who have cohabited like spouses for at least two years (living common-law). A limitation period is a window of opportunity to assert your rights in court. It is the time-period in which you must start your court case, or you will lose the right to do so. If in a common-law relationship then you must start your court case within two years of the date of separation to claim an interest in your estranged spouse’s property, and if married then within two years of the date of divorce. However, the running of the limitation period is suspended during negotiations involving family law professionals like lawyers, mediators, etc.
There is an interesting case[1] involved the death of one spouse in a marriage who had been separated for years from their estranged spouse. The estate of the dead spouse brought a claim for the equalization of family property against the surviving spouse. The surviving spouse argued the estate had no standing to bring the claim because the spouse was deceased, amongst other reasons. The court found the estate could bring the claim and allowed the matter to proceed. However, the court did not rule the limitation period applied to deceased spouses as it does to divorced spouses, but it suggested an estate should bring its claim within two years of the spouse’s death.
There are other time limits that also start to run on the date of separation. It is the starting point used by the court to calculate when spouses have lived separate and apart for at least a year, the most common grounds used for divorce. Also, Canada Revenue Agency will consider the date of separation when determining entitlement to, and amount of, certain benefits and credits like child tax benefits, GST refunds, etc.
Therefore, it is important to note the date of separation, and document it in an email, or otherwise, to your estranged spouse to confirm.
[1] Weaver Estate v. Weaver, 2022 BCCA 79(CanLI)
