Only no-fault divorce requires such a one-year separation period required by s.8(3) Divorce Act. Spouses relying on a one-year separation period are not required to wait until that period has expired before filing for divorce. But the divorce judgement cannot be obtained until the one-year period has passed. In the interim, either spouse may obtain corollary relief (CR) such as support, custody, or access to tide them over until the issue can be permanently resolved.
If a party sits and waits for a year to file the divorce application after the separation, they cannot rely on the federal Divorce Act for CR. But if they immediately trigger the application before their one-year separation period ends, the CR will be governed by the Divorce Act.
- s.8(2)(a) requires the separation to be continuous and uninterrupted for one year.
- “Separate and apart” can still mean “in the same house,” provided they have been living independent lives while sharing accommodation, and this will fulfil the requirements of s.8(2)(a) Rushton v Rushton
- s.8(3)(b)(i) provides that both physical separation and the intention to end marriage must coexist for a one-year period. Neither factor alone is enough Raven v Rave
- s.8(3)(a) requires proof of an intention to bring marriage to an end in addition to the fact of separation
- An intention is important here, a person moving back for a few days showing some thought to the possibility of reconciliation will not ruin the intention, but see below the 90-day rule.
- The courts found that a couple living under the same roof could be living separately and apart under the following circumstances, though establishing all six is not necessary, and each must stand or fall on its own merits: Cooper v Cooper
- Separate bedrooms
- Meals are eaten separately
- No sexual relations
- Wife not providing domestic services for husband
- Little to no communication
- No social activities together
- The court gives greater weight to matters particular to husband-and-wife relationships, such as sexual relations and joint social ventures, i.e. bowling night every Wednesday, and communication as well as the discussions of family problems, than to the performance or nonperformance of domestic chores McKenna v McKenna
- Not having sexual intercourse is a relevant but not conclusive indication of physical and mental separation Smith v Smith
- Not having sexual intercourse will not be enough to satisfy the requirement if they continue to discharge marital responsibilities Cridge v Cridge
- Isolated or causal acts of post-separation sex do not preclude finding that they continue to live separately; in the absence of mutual intention to reconcile, sex is not enough to equate matrimonial cohabitation Roadburg v Braut
- s.8(3)(b)(ii) confirms the limited right of a spouse to resume cohabitation in a reconciliation attempt without interrupting or terminating the one-year period.
- Spouses are free to resume cohabitation on any number of occasions and are not confined to a single attempt but a maximum of 90 days, e.g. 30 days the first time, 60 days the second time. Enman v McCafferty
