Prior to paying any benefits, we will ask the member’s spouse if they were living separate and apart from the member. If they answer yes, we will follow-up to confirm the details of the living situation.
Sometimes we may be advised by a third party (i.e. relatives, friends or another potential spouse) that a member may have been living separate and apart from his or her spouse. In this situation, we will follow-up with the appropriate parties to gather further information.
Does living separate and apart mean the spouses lived in separate residences?
Sometimes spouses can live separately and still be considered “living together” as spouses. For example, if one spouse lives in a nursing home due to deteriorating health while the other spouse lives in the matrimonial home, this can be considered an involuntary separation; as long as the spousal relationship continues, the spouses are considered to be living together.
There are also situations when spouses continue to live together but are considered to be living separate and apart. An example of this is where spouses are living in the same residence out of economic necessity but their spousal relationship has ended. When a spousal relationship has ended, the spouses may be considered to be living separate and apart despite living under the same roof.
How does OMERS determine if spouses were living separate and apart in the case of a dispute?
Determining if spouses were living separate and apart can be a complex matter and it is necessary to examine all the circumstances objectively. Relationships can be unique, and what was normal for a particular spousal relationship must be considered when determining if there is a departure from the normal state of affairs.
To help make a determination, OMERS looks at the following factors:
Physical separation – did the spouses live in separate residences? If so, are there extenuating circumstances requiring them to live separately (e.g., deteriorating health, work or school demands)? In the absence of extenuating circumstances, it is rare for spouses to choose to live in separate residences over a long period of time unless their spousal relationship has ended.
It is possible for spouses to be considered living separate and apart even if they live in the same residence. Separated spouses may continue to live together to co-parent their children, or out of economic necessity.
Withdrawl – there must be withdrawal by one or both spouses from their matrimonial obligations with the intent of dissolving the matrimonial relationship. Regard must be given to the true intent of a spouse rather than their stated intent.
Sexual relations – the absence of sexual relations is not conclusive but is a considered factor in determining if spouses are living separate and apart.
Family/social/household patterns - are there discussions of family problems and communication between the spouses? Do they attend joint social activities? What are their meal patterns?
Household tasks - have they continued to perform the same household tasks? Consideration is given to the matters which are unique to the relationship of the parties.