What is the date of separation?

When I first meet with new clients, they are often confused about the date of separation. Sometimes they are unsure of the specific date. Sometimes they do not know what date to provide until we discuss their situation further. Sometimes they will mistakenly believe they are not yet separated because they are still living with their spouse, which is not necessarily true. Spouses can be living separate and apart under the same roof.

Depending on the circumstances, it may be difficult to determine your date of separation. However, the date of separation is very important in the resolution of family law issues, so it is vital to understand how the date of separation is determined and why it is important.

How is the date of separation determined?

Sometimes the parties will agree on the date of separation. Other times each party’s date may differ by only a couple days. Provided there is no significant impact of using one date versus the other (as further explained below), one party may agree to use the other party’s date in order to eliminate dispute on the matter and to be able to move towards a resolution.

Sometimes parties will disagree about the date of separation, and they will need a judge to decide the matter, generally where it will make a financial difference in the outcome. The question then becomes, how is the date of separation determined?

Section 4(1) of Ontario’s Family Law Act defines the date of separation as the earliest of five possible dates. For most people, the date at which they are living separate and apart, whether under the same roof or not, usually applies. However, some couples struggle in their relationship over a period of months or even years. Some couples have a trial separation, reunite, then separate again permanently. So, you are separated once at least one person has formed the intention to separate and there is no reasonable prospect that you will reconcile or rekindle the relationship.

When this becomes unclear or there is a dispute, the law requires that we look at the circumstances of the parties:

• Did one party clearly communicate their intention to separate to the other party (even if the other party was in denial), perhaps in writing by text or email?
• When did the parties start to represent themselves to family, friends and the world that they are no longer together?
• When did the parties start separating their finances?
• When did the parties start sleeping in separate bedrooms and/or stop having sexual relations?
• When did the parties stop eating meals together or attending social events together?
• When did the parties start dividing up child care needs, or spending time caring for the children separately?

This is not an exhaustive list and no one factor is determinative or more important than another. A judge will look at the entirety of the circumstances and the evidence in order to determine the date of separation when there is a dispute.

Why is the date of separation important?

There are several reasons why the date of separation is important to the resolution of your family law matter.

1. Limitation periods – The date of separation is when the clock starts running on various limitation periods or deadlines under family law legislation. For example, under section 7(3) of Ontario’s Family Law Act, a married spouse may be barred by the passage of time from bringing an Application to the court if they have not done so by the earliest of the following dates: 6 years after the date of separation, 2 years after the date of divorce, or 6 months after the first spouse’s death.
   
2. Valuation for property division – Married couples have a right to a share in the value of property they accumulated during their marriage. The date of separation is the date on which the value of all your assets and debts crystalizes for the purposes of this property division – what we call “equalization”. This is why it is also called the “valuation date”. The value of property may vary depending on the date used and this could have a big financial impact. For example, with market fluctuations, an investment may be worth much more on March 12^th than it was on April 30^th. Generally, you will be required to equalize or share the value of the investment with your spouse as of the date of separation regardless of whether the value may have changed since then, though there may be exceptions to the general rule. Just because the date may have a negative financial impact on you does not change what the date of separation is once determined with regard to the factors mentioned above.
   
3. Divorce – You are eligible to seek a divorce once you have been separated for at least one year. The clock starts running on the date of separation. There are other grounds for seeking a divorce, but in practical terms waiting out one year of separation is the simplest and generally most cost-effective route.
   
4. Support – If child support or spousal support is owed, it is generally payable from the date of separation onwards. Sometimes, in the short term, other payments being made in lieu of direct support payments will off-set support, but it will depend on the circumstances.

Do you require assistance with a family law related issue?

Madison Goodacre is a lawyer in Siskinds’ Family Law Department. If you are going through a separation and need assistance with a date of separation issue, or if you need assistance with any other family law matter, please contact Madison by email.