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When is the Date of Separation, and why does it matter?

Things to Think about when Considering Separation from your Spouse

Couples who are considering separation may agree on the main issues that need to be addressed in order to come to a separation agreement. Sometimes they even agree on the best approach to follow for each of those issues. For example, if there are dependent children, they may already have a rough idea about a feasible parenting arrangement that would be in best interests of the children. If division of property is an issue, the two spouses may already have a rough idea, or hopes, about how to move forward with apportioning their assets as individuals rather than as a couple. Maybe one spouse is hoping to buy out the other spouse's share of the matrimonial home. Perhaps assets from an employment pension plan can be used to achieve a fair division of marital assets.

In these "amicable separations" the parties may need a lawyer's help only to quantify what exact arrangement would be fair between the parties and in accordance with Ontario law, and how to make the agreement enforceable in years to come so that the parties can move on with their lives. Even if the separation is largely amicable, it may be helpful for a spouse to know the answers to important "potential" questions, like whether one of the spouses has a legal entitlement to spousal support, and if so, how much; or, how in practice a separating couple can turn their rough ideas about equity into the reality of a solid, fair, and enforceable separation agreement.

When was the Date of Separation? Why does it matter?

Although it may seem strange, one area where a couple may disagree is when the relationship ended. This can be important because the length of the relationship can have a major economic significance. For example, if the relationship is shorter, a spousal support claim may be considerably less than if the relationship was longer.

The start date of the relationship can also be significant, since spousal support claims, unlike property claims, run from the start of the relationship rather than the marriage date. For the many couples who live together prior to getting married, this will make a difference.

For couples trying to divide matrimonial property on separation, lack of agreement about the date of separation may be significant because the value of major assets like a matrimonial home may change significantly depending on the year of valuation.

Even more dramatically, if the spousal relationship ended a long time ago, then any claim at all by a spouse to the other spouse's matrimonial property may be barred by the lapse of time! In Ontario, property claims against a spouse are barred if brought more than two years after a divorce or more than six years after the day when they separated, with no reasonable prospect of resuming cohabitation.

Living Separate and Apart but under the Same Roof

How can a couple disagree about when their relationship ended? You might think that it should be obvious when a couple is no longer a couple. Yet that is often not the case. Consider the situation where a couple no longer act as a couple in their private lives, but still live under the same roof. This situation may go on for years. Has their relationship ended?

In these days of coronavirus pandemic, this issue is all the more likely to emerge. Mobility is constrained. Finances are tight for many people and their employment prospects uncertain. In these circumstances, it may be hard for a spouse to move out a set up a separate residence for themselves. They may continue living under the same roof with their spouse for many more months, even though in their own mind, the spousal relationship is over.

The courts have developed a list of factors that should be considered to ascertain whether a marriage is merely "bad", or if it is truly "over" -- i.e., where the spouses have "separated and there is no reasonable prospect that they will resume cohabitation", to use the definition found in the Family Law Act. If they are no longer intimate, they sleep in separate bedrooms, no longer share meals together, don't do the grocery shopping for one another, and have separate shelves in the refrigerator for their food, for example, it can be fairly said that the two spouses no longer live as a married couple. They are more like housemates, together only for reasons of economic necessity or convenience.

The courts have also considered many other factors besides the few I have mentioned. In one case the court listed twenty-six factors! These included considerations such as whether the couple were still viewed as a couple by work colleagues, friends, or family members (Did they attend social or family gatherings together?); whether they still gave each other birthday cards or gifts; whether either spouse still did household chores for the other spouse such as vacuuming, dusting, cleaning dishes, and household repairs or maintenance; whether either spouse kept photos or personal items of the other spouse in their room, and how each spouse presented their marital status on their income tax return ("married" or "separated").

While none of these factors alone is conclusive, a combination of factors will create a scenario that will support one date of separation over another, which may be years apart from the first. This difference in time may make a big difference to the financial arrangement between the separating parties that would be supported by a court!

What you can do - Consider the Evidence

Any spouse considering separation, and who anticipates that the date of separation may be a controversial issue, would do well to consider what evidence they, or their spouse, may have to support one date over another. How would potential witnesses like work colleagues, friends or family members describe your marital relationship? Are there documents like birthday cards, anniversary cards or income tax returns that support or contradict the presence of a continuing matrimonial relationship? Considering the issue can help you save time and arrive at a more solid legal result, if you or your spouse decide to ask a lawyer about issues surrounding separation.

Thanks for reading!

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