Henderson Heinrichs LLP

What does it take to Separate?

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio) Published: October 18, 2011

Categorized: Case Analysis, Divorce, Family Court, Procedure.

At Henderson Heinrichs, we are often asked to seek a determination that the spouses in a marriage have no reasonable prospect of reconciliation.  Normally, this is not a particularly contentious issue.  However, there are circumstances in which a declaration such as this have far-reaching consequences.

In Wolfman-Stotland v. Stotland, 2011 BCCA 175, (CanLII) the court grappled with the question of a spouse’s capacity to separate.  In this case, the claimant wife and the respondent husband were  92 and 93 years old respectively, and the wife applied for a  s.57 declaration that there was no reasonable prospect of reconciliation.  In opposing that application, the Husband sought and received an order that a doctor provide an opinion as to the Wife’s capacity to make the  – though the doctor found that the wife had the capacity to instruct counsel regarding the financial aspects of the divorce claimed, she “did not have the capacity to form the intention to live separate and apart from her husband” [at paragraph 14].  The Chambers judge defined the relevant issue as whether the wife had the ability to both manage her affairs and instruct counsel.  The Court found that she did not.

The Court of Appeal disagreed.  Upon re-examination of the issue, the Appeal Court determined there should not have been a dual test.  The ability to manage ones affairs was determined to be a higher capacity than the one needed to instruct counsel and the court overturned the Chambers Judge’s decision.

The Husband’s application to appeal to the Supreme Court of Canada was dismissed, and the test for the capacity necessary to separate therefore remains a very basic one.

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