Determining separation in context of s. 43.1, Succession Law Reform Act

Law360 Canada (April 30, 2024, 1:37 PM EDT) --

Jason Moore

On Jan. 1, 2022, section 43.1 of the Succession Law Reform Act (SLRA) came into force, which revoked separated spouses’ intestate inheritance rights to their deceased spouse’s estate. In summary, under s. 43.1, a spouse who is separated from a decedent at the time of the decedent’s death can no longer claim a preferential share in their estate in the event of an intestacy.

Section 43.1 raises a crucial interpretive issue: when have spouses definitively “separated?” Section 43.1(2) offers limited guidance. In summary, a spouse is disentitled from an intestate spouse’s estate where (1) at the time of death, they were living separate and apart as a result of the breakdown of their marriage, and (2) the breakdown and separate living had occurred for the past three years, the spouses entered into a valid separation agreement or a court order or family arbitration award had been made to determine the terms of the separation. However, it remains challenging to determine whether the spouses were (1) living separately and apart, and (2) whether that separate living was a result of the breakdown of their marriage. This is especially true as societal definitions of relationships, marriage, cohabitation and separation continue to evolve.

Canada’s Divorce Act and Ontario’s Family Law Act provide helpful legislative guidance. Section 8(1) of the Divorce Act defines a “breakdown of their marriage” to occur where the spouse against whom the divorce is sought commits adultery or treats the other spouse with physical or mental cruelty that renders the continued cohabitation intolerable or where (a) the spouses have lived separate and apart for at least one year before the divorce proceeding, and (b) the spouses were living separate and apart at the commencement of the proceeding. Notably, unlike the Divorce Act, which only requires living separate and apart for one year, the time period for living separate and apart under s. 43.1 of the SLRA is three years.

There is currently no case law that provides a fulsome interpretation of s. 43.1 of the SLRA. However, there is ample case law regarding the meanings of separation and living separate and apart in the family law context. For example, in Greaves v. Greaves, [2004] O.J. No. 2522, in paragraph 34, the court states, “The court must look at various objective factors to determine if the parties are living apart or not.” In Oswell v. Oswell, [1990] O.J. No. 1117, the court provided a list of factors to be considered to determine whether spouses have been living separate and apart, including the necessity of physical separation and the withdrawal from matrimonial obligations. The presence of sexual relations (or lack thereof) is a non-conclusive consideration, as are communications between spouses and the presence or absence of joint activities.

Future jurisprudence over s. 43.1 will likely turn on whether, and how, the aforesaid Divorce Act and family law factors can be applied to marital breakdown and separation in the context of the SLRA. As the SLRA often applies to elderly spouses, concern must be given to the realities of marriages between elders. For example, spouses may still be happily married but living in separate quarters in a long-term care home due to different support requirements. One spouse may also live in the matrimonial home while the other lives for extended periods in a hospital. Physical limitations typical of advanced age may limit spouses’ ability to participate in once-normal activities, such as recreation, without any corresponding breakdown in the marriage. The Divorce Act considerations may, therefore, not be applied to s. 43.1 of the SLRA without careful adaptation.

A lunch-and-learn seminar on the topic of the interpretation of s. 43.1 of the SLRA in the context of family law jurisprudence will be hosted by Wagner Sidlofsky LLP in partnership with Epstein Cole LLP on May 7, 2024, starting at 12 p.m. This seminar is an opportunity for new and experienced estate and family lawyers to learn about this rapidly evolving area of family law and estate litigation. For more information and to register, please visit https://learn.wagnersidlofsky.com/litigation-separation/.

Jason Moore is a lawyer at Wagner Sidlofsky LLP, practising in the estate and commercial litigation groups. This paper is adapted from an upcoming paper by Adam Wygodny and Peter Neufeld, who are partners at Wagner Sidlofsky LLP, practising in the estate and commercial litigation groups.

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