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Rushton v Rushton

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FactsEdit

The parties were married for 25 years after which "difficulties" arose and for the last three years had lived separate lives while living in the same apartment. They slept in different rooms, had virtually no contact, bought and cooked their own food, did their own laundry, and the husband "received no services from his wife". He paid her a monthly sum for her maintenance. They continued to live in the same suite as they were both caretakers of the apartment building and it was necessary to appear to be husband and wife to remain.

IssueEdit

  1. Were the parties "separate and apart" for the required one year period under s. 4(1)(e)(i) (now s. 8(2)) of the Divorce Act?

DecisionEdit

Liberty to apply granted.

ReasonsEdit

Justice McIntyre holds that "separate and apart" are disjunctive; they are to be interpreted as a withdrawal from the obligation of marriage with the intent of destroying the marriage in addition to a physical separation of the parties. The mere fact the parties were living under the same roof did not mean these conditions could not be met.

RatioEdit

  • "[S]eparate and apart" requires an intentional withdrawal from the marriage for the purpose of destroying the marriage as well as physical separation.
  • It is not required that the parties live in separate residences to demonstrate physical separation.

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