A New Brunswick couple wanted to divorce and insisted they had separated – even though they kept meeting for regular hookups, if you know what I mean:
If a married couple separates and still wants to have break-up sex, is that anyone’s business but theirs?
Well, according to some judges, it might be if they are trying to get a divorce.
Take the recent case of K.L.S. and D.R.S, a New Brunswick couple who married in 2004 and separated in 2010. Their case went all the way to the provincial appeal court, which rendered its verdict last month.
In this case, the husband moved out of the home and set up a place for himself across town. But at some point after their separation, the wife engaged him in sexual relations.
They agreed to new rules and boundaries about how it would all work and the new arrangement lasted for several months.
However, when it came time to formalize their divorce, which they both wanted to happen, the judge refused the application.
The New Brunswick Court of Appeal, in a 2-1 decision, ultimately granted the divorce. Associate Justice Bradley Green examined the factors to be considered in determining whether a couple is truly living “separate and apart,” and determined that the trial judge placed too much emphasis on the fact that the parties were still having sex:
 The courts long ago accepted the possibility that an estranged couple may at law be living separate and apart, even though they continue to reside under the same roof. That said, surely we must also be open to the possibility that an estranged couple who no longer share a residence may at law be living separate and apart even though, for whatever reason, they continue to engage in consensual sexual activity with one another.
 Had the inquiry at trial looked at all or most of the factors set out above, the following picture would have emerged:
• The respondent maintains a separate residence, which he has arranged in such a way that the parties’ child has a second home there.
• The parties do not communicate well, argue frequently, and what communication does take place is sometimes hostile. There are allegations of abuse between the parties, and both testified their relationship included name-calling.
• As discussed, the parties did engage in sexual relations with one another.
• The only meal shared together was on the child’s birthday.
• The parties do not attend or engage in social or recreational activities together. In fact, on those occasions when the parties would both be in attendance at their child’s activities, or happen to see one another in the community, the encounters could be problematic.
• The parties do not travel or vacation together, and with the exception of a two-hour period at Easter, do not spend holiday time together as a family.
• The parties present themselves to others as being separated and not on good terms.
 Only one of these factors suggests that perhaps the parties were not living separate and apart, that being an ongoing sexual relationship. Although the case law from trial courts across the country is not uniform, this fact alone should not, and in my opinion does not in this case, constitute an interruption of separation.
 With respect, when the trial judge chose to focus on a single issue in determining whether the parties were living separate and apart for the requisite period, and did not address any factors other than sexual activity in her decision, she fell into error and opened the door for appellate intervention. In my opinion, it was an error of law to give undue weight to one factor, and no weight whatsoever to the various other factors.
 On the issue of reconciliation, I will comment briefly. Both parties testified that reconciliation was not their intention when they met to engage in intimate contact. It is ironic that had they characterized these sexual encounters as attempts to reconcile (and on the assumption that the 90-day time limitation set out in s. 8(3)(b)(ii) of the Divorce Act was respected), apparently the question of whether they were living separate and apart would have been answered much more simply.
 On balance, the evidence in this case is strongly weighted in favour of a finding that in fact, and at law, the parties have been living separate and apart since February 10, 2010. For that reason, the majority of the Court determined that the appeal should be allowed, the Petition for Divorce granted, and the matter remitted to the trial judge, who has already heard a considerable volume of evidence, to deal with the remaining issues between the parties.
Calgary radio host Rob Breakenridge and family lawyer Lonny Balbi discussed the case on Breakenridge’s show last night. The resulting podcast is well worth a listen.