Living separate and apart under one roof is something Alberta's own divorce guidance contemplates. The province says spouses may decide to live in the same home during the year of separation, and that evidence they were separated during that time will be required.
The guidance names the reason couples do it: financial or other family circumstances. It does not treat the shared address as ending the separation.
What it does attach is an evidentiary requirement: you will be required to provide evidence that you were separated during that time.
Under the Divorce Act (Canada), a divorce turns on breakdown of the marriage, and the Act says breakdown is established only in the ways it sets out. One of those ways has two parts: the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding, and they were living separate and apart when the proceeding began.
The Act then sets out how that period is calculated, and the calculation has two elements. Spouses are deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other.
The intention to live separate and apart may be held by either spouse; the provision does not require both spouses to share it.
The Act also names two things that do not, by reason only of themselves, interrupt or terminate the period. Each is narrow, and each carries its own condition.
01 The first is that either spouse has become incapable of forming or having an intention to continue to live separate and apart, or of continuing to live separate and apart of the spouse's own volition - and that applies only if it appears to the court that the separation would probably have continued had the spouse not become so incapable.
02 The second is that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days, with reconciliation as its primary purpose. One stay or several, the ninety days is the total.
Each is written as "by reason only" of the thing described. The Act is saying that the fact on its own does not break the period - not that the period continues whatever else is going on.
There is no such thing as a legal separation in Canada.
The province says so directly, and adds that being separated for a year is one of the grounds for divorce.
So there is no separate status to apply for and nothing to be granted. You are separated, or you are not, on the facts of your situation, and the one-year period does its work as a ground for divorce rather than as a status.
Whether an unmarried couple in an adult interdependent relationship has ended that relationship is a different question, under a different Alberta statute, with rules of its own.
In Calgary, the Government of Alberta's Family Justice Strategy sets requirements for seeking court assistance. Which apply depends on the relief requested and the circumstances.
Which of them apply depends on the matter - whether children under 18 will be affected, whether the application is about child support, spousal support, adult interdependent partner support or family property division, and whether a party has a lawyer. A respondent's parenting course deadline runs from the date they are served.
Where a requirement cannot be completed, a waiver or deferral can be requested on application, and concerns about family violence are among the listed reasons.
How a particular court runs a family matter is a separate question, and it depends on which court.
If you are separated and still under one roof, the questions worth asking early are what your separation date is and what you can show about it.
Contact THEBIL Law to discuss your situation and the questions you want to address. You can submit a consultation request at any time, and the office will be in touch to arrange a meeting.
THEBIL Law, 5920 Macleod Trl SW Ste 720, Calgary, AB T2H 0K1, Canada. Call 403-457-3128.
