Couple was separated and had a separation agreement, but then moved in together. But they slept in different rooms. They moved twice but stayed physically together. Sex stopped. H was giving $ to W, and supporting household. H did not have plans for what would happen in the future, they planned to continue to live together.
Were the parties living separate and apart as required under the Divorce Act?
To be considered living separate and apart need: Physical sep and withdrawal by 1 or more spouse of the matrimonial obligation w/ intent to destroy matrimonial consortium
Test for living separate and apart: each case determined on own circumstance, there can be physical separation while living in the same home. Sex is not conclusive about separation.
Conditions to consider (not conclusive): (Cooper)
*Little communication between spouses
*Wife doesn’t provide domestic services for husband
*Eating meals together or apart
*No social activities together
*Absence of sexual relations
Court did not grant divorce because couple was considered not to be living separate and apart