Legal and Practical Tips for Living with Your Ex While Separated
By Jade Liu, Articled Student, Vancouver
If there is one thing we can all agree on, it’s that housing in Vancouver is expensive. While cities outside Vancouver proper might be slightly more affordable, finding a place to make your home is still a big financial stressor for most folks. When it comes to relationships, the rise in housing prices has been linked to a rise in couples moving in together sooner than they would otherwise, often saving on rent or mortgage costs. The same holds true when a relationship ends with many former partners living together long after they’ve broken up. While this is far from ideal, it’s a situation many people find themselves in. This blog explores practical and legal steps you can take to make the transition easier and avoid potential future complications.
The Legal Side: Remaining Separate and Apart
To be granted a divorce in Canada, you must be living “separate and apart” from your former partner for at least one year. For common-law partners, your date of separation is important as it can affect your property or debt division claims. In both instances, your date of separation will affect any claims for child and spousal support, especially retroactive claims.
There is no need to formally apply or tell the courts you’ve separated. However, if a dispute were to arise over the date of separation, you may have to submit evidence to prove the date is when you say it is.
Perhaps obviously, an easy way to prove you’re living separate and apart is for one party to simply move out (though sometimes those scenarios can be contested too). If you lived together for a time, or if you are still living together after separation, there are several factors the courts consider when asked to determine the date of separation, such as:
- What were your sleeping arrangements after the alleged separation?
- Did you have sexual relations with each other?
- Were you monogamous?
- Did you communicate on a personal level? This could mean texting or calling in the same way you did when you were in a relationship.
- Did you buy gifts for each other on special occasions?
- Did you carry out domestic responsibilities together, like preparing meals, laundry, or grocery shopping?
- Did you participate in neighbourhood or community activities together?
- Have you separated out your finances and other accounts?
- Have you discussed or arranged for how you will divide your day-to-day living costs, like mortgage payments, rent, utilities, etc.
These factors, among other things, come from the B,C, Supreme Court decision, Kneller v Greenwood. But don’t worry, even if one or more of these factors apply to you, that doesn’t automatically mean a court will find that you weren’t separated during that time. Courts look at the situation as a whole, no single factor outweighs all the others.
So, if you still text your ex about funny work stories, or you buy groceries together because it’s cheaper, that alone doesn’t mean you aren’t separated. But if you and your ex continue to function as a family unit (like as was the case in Weber v Leclerc) by attending social events together as a family; sharing a bedroom; having intimate relations; and providing each other with emotional support, the court is likely to find you weren’t separated at all!
On the other hand, if you were to try to get back together for a period and it doesn’t work out, your date of separation wouldn’t change – so long as you didn’t rekindle your marriage or marriage-like relationship for longer than 90 consecutive days.
Consider a Separation Agreement
Putting a separation agreement in writing can help reduce conflict while you’re still living together and clearly demonstrate that you intend to remain separate and apart. A duly executed separation agreement can also make the divorce process easier down the line, and covers things such as property and debt division, spousal support, parenting time, child support, and more.
If you feel it is right in your case, and you are both on the same page, consider introducing the idea of an agreement early on in your separation, as it can take some time to draft and execute. You can read more about separation agreements in our blog: Strategies for Separation – Essential Do’s and Don’ts.
Know Your Property and Debt Division Deadlines
If you and your former partner can’t agree about how to divide shared family property and debt, there are a few deadlines to be aware of to ensure you don’t miss the window to file a claim. For married couples, you have two years after the date of your divorce to start proceedings. For common-law couples, you have two years after your date of separation to make a claim.
It’s often best to avoid starting court proceedings while you’re still living in the same home, as this can increase tension and make an already difficult situation more challenging. However, if you are approaching that two-year deadline and are still living together, you may need to take steps to protect your legal rights. Either way, it’s important to clearly document your date of separation.
The Practical Side: Keeping Your Feelings Separate and Apart Too
The tried-and-true method for getting over a break-up is eating a gallon of ice cream and blocking your former partner on every platform you can think of, but that looks different when you still live with your ex and need to see them every day! Here are a few practical tips to help you move on and, hopefully, move out as smoothly as possible.
Set Firm Boundaries Right Away
If you’ve just broken up, there’s often a lot to figure out that goes beyond legal issues. Taking the time early on to set some clear ground rules can help prevent confusion and unnecessary heartache later. Some helpful questions to talk through together include:
- Where will each of us sleep?
- How will we handle groceries and meals?
- How will we divide rent or mortgage payments? What about other shared bills, such as utilities?
- How will we divide time with our children? What about pets or other dependents?
- If either of us start dating, what boundaries should we set around bringing new partners into the home, if at all?
- What topics should we limit our communication to, and how should we communicate (for example, text only)?
This list is by no means exhaustive, but it’s a helpful starting point for thinking through what this transition might look like and for setting boundaries that help you feel safe during this separation period. There are no right answers, every family is different, and what works for one may not work for another. The goal is to figure out what works best for you.
As you’re setting these boundaries, it’s also important to keep the “separate and apart” factors in mind, just in case a dispute arises later.
Make Reconciliation Intentional
You’ll probably find it’s much easier and more tempting to get back together with an ex when you’re still living together. Even without a proper discussion, proximity alone can pull you back into old routines, which may stir up familiar feelings. If reconciliation is what you truly want, then by all means, pursue it. Just be mindful of your own emotions and make sure you’re not finding comfort in a familiar pattern without a genuine desire to reconcile.
It’s also worth remembering that reconciliation can have legal implications. Resuming a romantic relationship for more than 90 consecutive days resets your date of separation, which may affect the timing if things do not work out and you decide to proceed with a divorce.
Have an Exit Strategy
The situation can be more manageable when you know there’s a clear end in sight. Start putting plans in motion that will support your next chapter, whether that means browsing new housing options, packing some of your belongings, or meeting with a family lawyer so you feel organized and prepared when you’re ready to take the next steps in your divorce.
If you’re considering a separation agreement or have questions about how to show you’ve been living separate and apart from your ex, reach out to any of our experienced family lawyers today for a free 20-minute consultation tailored to your needs.
