When is the “Date of Separation”?

June 22, 2012

Many people erroneously believe that they are “legally separated” when they have a signed Separation Agreement.

In fact, spouses are separated when they commence living “separate and apart”, whether under the same roof or in separate residences. Obviously, therefore, spouses are “legally separated”, before they have signed a Separation Agreement confirming their date of separation.

Establishing the date of separation is relevant to a number of factors. For example, under the Divorce Act, a court may grant a divorce in the event that 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.

The date of separation is also relevant to the issue of equalization of property, in that property and debts are equalized between the spouses from the date of marriage to the date of valuation: “valuation date” includes the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

Finally, determining the date of separation is relevant to the consideration of retroactive child and spousal support. In other words, if the court is asked by the recipient spouse to order child or spousal support retroactive to the date of separation, it is obviously significant for the court to establish the actual date of separation.

For the purposes of a divorce, the spouses do not necessarily need to be living in separate residences for a court to deem them living “separate and apart”.

For instance, in Greaves v. Greaves, decided by the Ontario Court of Appeal in 2004, the court indicated that one must look at various objective factors in order to determine if the parties are living apart or not. The criteria for the court to consider include the following:

1. There must be a physical separation. Just because a spouse remains in the same house for reasons of economic necessity, does not mean that they are not living separate and apart.
2. There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship.
3. The absence of sexual relations is not conclusive but is a factor to be considered.
4. Other matters to be considered are the discussion of family problems and communication between the spouses, presence or absence of joint social activities, and the meal pattern.
5. Although, the performance of household tasks is also a factor, weight should also be given to those matters which are peculiar to the husband and wife relationship outlined above.
6. The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent. An additional consideration in determining the true intent of the spouse, as opposed to that spouse’s stated intentions, is whether the spouse has filed income tax returns as “separated” or “married”.

In terms of establishing the valuation date for equalization purposes, again, they must be living separate and apart, with no reasonable prospect that they will resume cohabitation. Therefore, in the event that the parties are continuing with marriage counseling, it is highly unlikely that a court will find that the spouses have separated.

In the case of Strobele v. Strobele (2005), the court found that the principles for fixing a separation date under the Family Law Act are not necessarily the same as those developed under the Divorce Act. The court found that the goal under the Family Law Act is to fix the date on which the economic partnership should fairly be terminated, whereas the goal under the Divorce Act is to establish the date on which the parties may obtain a divorce. The court indicated that the global question is, when was it that the parties knew or, acting reasonably, ought to have known that their relationship was over and would not resume? Continuation of a relationship requires two people. Either person can end the relationship without the consent of the other. There are many cases where one spouse knows there will not be a reconciliation but the other does not. A fair determination of this issue requires that an objective eye be cast upon the unique circumstances of the couple.  Where one spouse with the intention of ending the relationship transfers or dissipates assets, an early valuation date may be appropriate. Where one spouse has decided to terminate the relationship, but has not made this clear to the other spouse, then a later valuation date may be in order. However, the test is not purely subjective. Groundless hopes of reconciliation should not extend the valuation date where one spouse has been clear in his or her intentions to end the relationship.

The 1988 Ontario Court of Appeal case of Czepa v. Czepa, held that the quest for a valuation date is tied to that date when the marriage has irretrievably broken down and the resumption of cohabitation is not reasonably foreseeable.

Given the potential implications on the parties’ equalization of net family properties and the amount of an equalization payment owing by one spouse to another, it is not surprising that spouses are often taking differing views as to the date of separation. As with all cases in family law, courts will strive to achieve a fair and reasonable result, having regard to all of the circumstances.