Disclaimer: This article aims to provide educational information on your date of separation. It is not intended to serve as legal advice. Consult with a lawyer and exercise your discretion before taking action based on the information provided in the blog. 

For many areas of our lives, dates tend to be fixed and not open to interpretation. For example, our birthday, wedding anniversary, the day we began our employment, and other events have a clear date. 

Unfortunately, determining a marriage’s precise date of separation is far from straightforward. Ending a marriage is complex, entangling various legal, emotional, and practical considerations. Emotions run high and can significantly influence how each spouse sees the end of their relationship.

In this article, we will outline why your date of separation is so important and the different factors the courts will consider when the date of separation is disputed. 

The Family Law Act and The Divorce Act

In Ontario, the issue of determining the separation date is important for both the Divorce Act and the Family Law Act. The Divorce Act considers the separation date when granting a divorce and analyzing spousal support. The Family Law Act uses the separation date to calculate the net family property for property division.

Under the Divorce Act, the separation date matters because the couple must have lived separately and apart for at least one year before getting a divorce. To prove separation legally, you must meet several key requirements. You need to physically live separately and apart, demonstrating your intent to end the marriage. Parties can live separate and apart in the same house.  Your separation must be continuous and uninterrupted. Finally, you must demonstrate you are living separate lives. 

Under The Family Law Act, the valuation date (which is the same as the separation date) is used to value what each person owns. 

The impact of your date of separation 

The date of separation holds immense significance in legal cases involving couples, including: 

• Determining the valuation date for equalizing net family properties; 
• Impacting the equalization payment between the parties;
• designating a matrimonial home; 
• determining the length of the relationship for spousal support calculations; and 
• the eligibility for specific pension benefits

The separation date also has practical consequences during litigation. For example, financial disclosure usually covers the period leading up to two years prior to the separation date. 

Each relationship is unique 

Each relationship is unique and has its own complexities. Therefore, no single factor alone can decide if spouses are living separately. Instead, the courts must carefully consider and evaluate all the factors involved.

For example, attending family events and vacations may seem like an indicator that the couple is not separated. However, that may not necessarily be the case. Are the couple truly separated and attended events to be successful co-parents? 

What if one party feels that there was a reconciliation following a final separation? Reconciliation can be difficult to define. What one spouse perceives as an attempt to mend the relationship may be seen differently by the other party. Courts must carefully examine the evidence presented to ascertain whether a genuine and sustained attempt at reconciliation occurred or if the relationship remained irreparably fractured despite outward appearances. 

So while there is case law surrounding this issue, each situation will be assessed on its own merits, considering the relationship’s specific circumstances and dynamics. 

Evidence of the date of separation that the courts have considered 

While each relationship is unique, there are different factors that the courts have considered when determining the true date of separation. This list is not exhaustive but gives an idea of the wide range of evidence and sources that can be used to establish the date of separation. 

Agreements / Legal Documents

Legal letters, letters to government agencies and agreements have been used to support the argument that the parties were living separately. For example, a residential tenancy agreement has been entered into evidence to support such an argument. The agreement noted the wife as the sole tenant and the husband as a guarantor. 

Photos and Social Media Activity 

Courts have often examined photographs to gauge your interactions and social life during the alleged period of separation. For instance, pictures depicting you and your spouse together at family events, vacations, or even holding hands have been presented as evidence. These images provide insights into your emotional and physical connection and can challenge arguments about living apart. 

On the other hand, social media activity, such as posts, comments, and interactions, can establish the state of the relationship. Social media posts may reveal the couple’s public portrayal of your relationship. For instance, a post celebrating a recent anniversary or mentioning future plans together could be used to counter any claims of an earlier separation.

Witness testimony

Witnesses can include friends, family members, neighbours, counsellors, and other individuals who have observed or been directly involved in your lives. Their testimonies can shed light on critical aspects, such as the couple’s living arrangements, social activities, communication patterns, and alleged periods of reconciliation.

Navigating your separation and divorce

If you find yourself grappling with the complexities of determining the date of separation in your divorce or separation case, you do not need to navigate this challenging journey alone. Reach out to our team of family law experts at Plat Simionati LLP.