Separation And Termination Of Marital Relationships In B.C.: Impacts On Estate Litigation And Administration

• Law Firm: Borden Ladner Gervais LLP
• Subject Matter: Family and Matrimonial, Family Law
• Author: Mr Scott Kerwin
• Published date: 14 February 2023

There is an old Seinfeld episode ('The Strongbox') in which the character of George Costanza struggles to convince his girlfriend that they have actually broken up, and despairs that he may need to prove his case beyond a reasonable doubt. The girlfriend suggests that they are like the commanders of a nuclear submarine who must each 'turn their keys' before launching missiles, prompting George to exclaim: 'turn your key!'. In the remainder of the episode, George resorts to a more outlandish scheme to end the relationship.

It will be no surprise that the law in British Columbia relating to marital breakdown is quite different. It is not required that both spouses 'turn their key' to end the relationship; it is well-settled that only one spouse needs to form the necessary intention to end the relationship. However, the law requires additional action: the spouse must communicate his or her intention to separate or terminate the relationship, either verbally or though conduct, and in such a manner as to demonstrate the settled intention in a convincing and unequivocal manner: H.S.S. v. S.H.D., 2016 BCSC 1300.

In regards to married couples, the key concept under both the Wills, Estates and Succession Act (WESA) and the Family Law Act is 'separation': Malacek v. Leiren, 2021 BCSC 1052 at paras. 36-39. For common law marriages, or marriage-like relationships, the WESA uses a different term. Section 2(2)(b) of this statute provides: 'Two persons cease being spouses of each other for the purposes of this Act if ' in the case of a marriage-like relationship, one or both persons terminate the relationship'. The B.C. Court of Appeal has held that, based on the legislative history, the 'termination' of a marriage-like relationship is different than 'separation': Robledano v. Queano, 2019 BCCA 150. There was a policy choice not to adopt a period of separation as the test for termination, but to focus on statements or acts that unilaterally and 'instantly' terminate the relationship. Despite such dicta, a review of the caselaw shows that there is no discernable difference in the tests applied by the courts in B.C. to determine whether a 'separation' or 'termination' of a marriage-like relationship has occurred.

Most cases relating to separation or termination arise in the family law context. In such cases, there will be no dispute that a separation has occurred; the sole dispute is the precise date of separation as that would bear upon the division of family property...