Most people believe that to be separated they need to physically separate from their partner.
I sometimes hear the phrase legal separation and often it suggests that some sort of legal document is exchanged confirming that the parties have separated. This is not necessary.
Under Ontario law, parties are legally separated when the relationship has broken down and there is no reasonable prospect that the parties will reconcile. Put another way, when was it that the parties knew, or acting reasonably, ought to have known, that their relationship was over and would not resume? That would be the date of separation.
When put so simply, you see that parties can live under the same roof, and yet be separate and apart.
But what happens when one party knows there will be no reconciliation, but the other still has hopes for the relationship resuming? This can lead to a dispute about the date of separation.
How will the court deal with this? By reviewing the unique circumstances of each couple.
Some factors that the courts would look at include:
- Are the parties sleeping in separate bedrooms?
- Is there an absence of sexual relations (this is a factor, but not a determinative factor)
- Did the parties communicate, discuss family problems as a couple, etc?
- Did they attend social activities together and present themselves as a couple to others?
- Did the parties continue to cook and perform household tasks as they did before the alleged date of separation?
- How did the parties manage their finances? – who managed them? how are car payments, cell homes and other household accounts paid?
- Was there an incident that stands out – e.g. a physical altercation; a major blow out argument, etc. Some cases have referred to it as a seminal event.
- Has one party stopped depositing money into a joint account for e.g.? Has he or she transferred funds to an account the other party cannot access?
- How did the parties file their taxes?
- Did either party retain or consult a lawyer?
None of these factors are determinate in and of themselves.
The courts in deciding the date of separation would be careful to differentiate between parties living together in an unhappy or stormy relationship, vs. living as two separate individuals under the same roof.
Why is the date of separation important? The 2 main reasons are:
It is the date of valuation. This means it is the date your assets and liabilities are valued, for the purposes of equalization.
Divorce – one year begins to count from that date
The wrong date of separation could cost you a lot of dollars in equalization
Also, while you may be eyeing a divorce and excited about an earlier date of separation, beware of what it may cost you in Retroactive Child and Spousal Support if you have a support obligation.
What to do if you and your partner don’t agree?
Go over your situation based on the factors I had previously mentioned. That is, numbers 1 – 10 above. Try mediation with a knowledgeable mediator. An objective mediator will be able to help you resolve the issue.
Is it worth it?
Sometimes, the dispute is not even worth it. The difference in dates could be so close that nothing turns on it e.g. equalization or support. It may mean waiting a little longer in some cases even a few days to get the divorce. But if you’re caught up in a court battle, you may delay getting your divorce by even longer anyway.
Principles: There is something to be said for principles and the truth however you need to make an informed decision of whether the cost is worth the benefit.
If you need any help with family law matters, contact the AP Family Lawyers team in Pickering, Toronto, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.
