Courtney Cox and David Arquette: Trial Separation?

Last week major media networks reported that Courtney Cox and her husband of eleven years were going through a "trial separation." The specific details of the separation have not been disclosed as of yet, however David Arquette did speak with Howard Stern on his radio program and announced that he and Courtney had already been separated for four months. The two have one child together, Coco, who is 6 years old.

What would happen if the two lived in Ontario?

Pursuant to the Divorce Act, when a couple decides that they want a divorce, they must establish that there has been a breakdown of the marriage. This would include establishing one of the following:

  1. The spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
  2. The spouse against whom the divorce proceeding is brought has, since celebration of the marriage:
    • committed adultery; or
    • treated the other spouse with physical or mental cruelty.

In this case, as the couple has announced that they remain "best friends" and "still love each other" and that they are only going through a "trial separation" in order to obtain better understanding themselves and the qualities they are looking for in a partner, it is unlikely that the two would bring an application for divorce based on adultery or cruelty. Therefore, if the couple decided that their "trial separation" should be permanent and that they wanted a divorce, in order to be granted this in Ontario, Courtney and David would have to show that they had lived separate and apart for at least one year.

Usually, people question what it means to live "separate and apart." Parties will be deemed to have lived separate and apart for any period of time that they actually lived apart and either of them had the intention to live separate and apart from the other. In the case of Greaves v. Greaves the Court held that in order to determine if parties have been living separate and apart, the following objective factors must be considered:

  1. there must be a physical separation, however living under the same roof does not necessarily preclude the determination that there was a physical separation;
  2. there must also be the intent of one or both spouses to destroy the matrimonial relationship;
  3. the absence of sexual relations, while not a conclusive factor, must still be considered;
  4. the discussion of family problems and the communication between the spouses, the presence or absence of joint social activities, and meal patterns should be considered;
  5. Matters which are particular to the matrimonial relationship with respect to the performance of household tasks and whether these have remained the same or have changed; and
  6. The true intent of a spouse as opposed to the spouse's stated intent to separate from the other spouse. A court may look at whether the spouse filed his/her income tax return as "separated" or "married."

It has been reported that the two have been living in separate homes, with Courtney living in their Malibu home and David residing in their Beverly Hills Estate. Therefore, without having any details on their separation, it would seem as though the couple has met the criteria listed above to establish that they have been living separate and apart.

Another factor that must be looked at is whether the couple has lived separate and apart for the duration of one year before a divorce will be granted. The period of one year will not be considered to interrupted either where one of the spouses becomes incapable of forming or having an intention to live separate and apart or when the spouses resume living together for the purposes of reconciliation as long as this period does not amount to more than a total of ninety days. If the period of time does become interrupted for any reason, then the couple would have to re-start the clock to establish a one year period of living separate and apart.

As Courtney and David have already been living separate and apart for four months, if they were to decide that they wanted a divorce, they would only have to show that they have lived separate and apart for an additional eight months. If at any point during this period they decided that they were going to attempt to reconcile, as this is only meant to be a trial separation, then as long as the total amount of days in which they do not live separate and apart does not exceed ninety, a divorce could be granted to them should they so choose.

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