The parties married in 1960. Difficulties arose in 1965 and in 1966 they entered into a written separation agreement which gave the wife custody of the children and the husband was to assume financial obligations. The wife moved into an apartment. Two years later the husband moved in with the respondent and resumed normal marital relations for around a month after which the parties began to occupy separate bedrooms and again ceased having sex. They moved twice and continued to live together. Petitioner says they stayed together for the kids while the wife claimed it was out of economic necessity.
- Were the parties sufficiently separated to constitute a "breakdown of marriage"?
Justice Stevenson canvases the caselaw and extracts six things which represent the weight of judicial opinion on this issue:
- Each case must be considered in light of its unique facts
- You can be separated within a single dwelling unit
- Staying together for economic reasons does not take the case out of the statute
- There must be both a physical separation and a withdrawal from the marital obligation with the intention to destroy the marriage (see also Rushton v Rushton)
- Cessation of sexual intercourse is only one factor to be considered and is not determinative
- There is a distinction between an unhappy household and a separated one
He identifies six circumstances from Cooper v Cooper, 10 RFL 184 (reproduced below) which generally indicated that a couple was living separate and apart, though he notes that not all six must be present for such a finding.
On the evidence before him, he concludes that there was not such a separation and denies the divorce petition.
The following factors generally point to a finding that a couple are living separate and apart:
- Spouses occupying separate bedrooms
- Absence of sexual relations
- Little communication between spouses
- Wife providing no domestic services for her husband
- Spouses eating meals separately
- No joint social activities
It is not necessary that all of these factors be present; each case must be decided on its own facts.