When a marriage breaks down, couples often focus on the general practical questions: Where will each person live? What will happen to the children? How will the home be divided? Who will pay the bills?
The precise date on which the parties separated may seem like a relatively minor detail.
Years later, however, that date can become one of the most important facts in a family law case.
In this blog, we will discuss what the “year of separation” means in Ontario, how the date of separation is determined, whether spouses can be separated while continuing to live under the same roof, and why establishing the correct separation date can have important consequences for property division and support. We will also discuss the types of evidence that can help establish when a separation actually occurred.
Understanding the significance of the separation date and keeping clear records at the time of separation can help protect against future disputes and provide important evidence if questions arise years later. If you have questions about the date of separation in your divorce, speak with our Toronto divorce lawyers today.
What Does the “Year of Separation” Actually Mean?
The phrase “year of separation” is commonly used because, under the federal Divorce Act, spouses must have lived separate and apart for at least one year before a divorce can be granted based on marriage breakdown. The spouses must also have been living separate and apart when the divorce proceeding began.
Importantly, spouses do not have to wait one year before they are considered separated. The one-year period is a requirement for obtaining a divorce based on living separate and apart; it does not determine when the separation itself occurred.
This distinction is important because the date of separation can have significant legal and financial consequences, including for property division, support, and other rights and obligations arising from the breakdown of the relationship.
For married spouses, the date of separation is also important in determining the applicable valuation date for purposes of property division. The relationship between these two dates, and why the distinction matters, is discussed below.
Separation Date VS. Valuation Date
The terms “separation date” and “valuation date” are often used interchangeably in family law discussions, but it is helpful to understand the distinction.
For purposes of property division under Ontario’s Family Law Act (FLA), the valuation date is the date the spouses separate, and there is no reasonable prospect that they will resume cohabitation. This date is important because it establishes the point in time at which the spouses’ assets and debts are assessed for the purpose of determining their respective net family property.
In other words, the significance of the valuation date extends beyond determining when the relationship ended. It establishes the specific point in time at which each spouse’s financial position is assessed for property division purposes.
This becomes particularly important where an asset has increased or decreased substantially in value over a relatively short period.
Can You Be Separated While Living Under the Same Roof?
One of the most common misconceptions about separation is that one spouse must physically leave the matrimonial home before the parties can be considered separated.
Financial circumstances, children, housing costs and other practical considerations may make it difficult for one spouse to move out immediately. A couple may therefore remain living in the same house while leading increasingly separate lives.
The fact that the parties share an address does not, by itself, determine whether they are separated. Rather, the court will look at the relationship as a whole and consider how the spouses were actually living.
Some of the factors that may be relevant are:
- Whether the spouses continued to have an intimate or sexual relationship;
- Whether they continued to eat meals together;
- Whether they continued to socialize together as a couple;
- Whether they attended family or social events together;
- Whether household responsibilities continued to be shared;
- Whether they communicated their intention to separate to family members, friends or professionals;
- Whether they continued to use joint bank accounts or credit cards;
- Whether they continued to contribute to each other’s expenses; and
- Whether they otherwise continued to operate their lives as a married couple.
The court does not rely on one single factor, but considers the circumstances of the relationship as a whole.
When Spouses Disagree About the Separation Date
Where spouses propose different separation dates, the court will consider the evidence to determine when they truly separated. The determination is based on the parties’ conduct and circumstances surrounding the breakdown of the relationship instead of simply the date asserted by either spouse.
For example, if one spouse maintains that the parties separated on January 1st, and the other claims that the separation did not occur until July 1st, the court may examine the parties’ conduct and living arrangements during the intervening period. Evidence of how the spouses conducted themselves, managed their finances, interacted with one another, and presented their relationship to others may assist the court in determining the date on which the separation occurred.
A disagreement about the separation date does not necessarily mean that either spouse is being dishonest. Relationship breakdowns are often gradual, and there may be a time during which the parties are struggling with their relationship, considering reconciliation, living increasingly separate lives, or maintaining stability for their children. In some cases, there may be no single event that clearly marks the end of the relationship.
The surrounding circumstances, considered as a whole, may provide a clearer picture of when the relationship ended than either spouse’s recollection years later. Emails, text messages, financial records and other documents created around the time of separation may therefore be particularly helpful in establishing what was happening at the time.
Why the Date Matters for Property Division
The valuation date, as discussed, is specifically important when determining property division between married spouses.
Under the FLA, each spouse’s assets and debts are assessed as of the valuation date for the purpose of calculating their net family property and determining any equalization payment.
The valuation date can have significant financial consequences where an asset has increased or decreased substantially in value over a relatively short period. This may be the case with:
- Real estate;
- Investments;
- Private corporations and business interests;
- Pensions;
- Stock options; and
- Other assets whose values can fluctuate significantly over time.
The same consideration applies to debts. The amount of a debt as of the valuation date may affect a spouse’s net family property and, in turn, the equalization calculation.
As a result, a difference of several months in the separation date can potentially lead to a significant difference in the parties’ financial positions. Establishing the value of the parties’ assets and debts as of the correct valuation date is therefore an important part of the property division process.
Contemporaneous financial records, including bank statements, investment statements, debt records, business records, and other financial documentation, can be particularly helpful in establishing the parties’ financial positions as of the valuation date. If you are experiencing disagreements over your separation date, our Toronto property division lawyers can help.
The Impact of the Separation Date on Support Obligations
The separation date can also be relevant when it comes to child support and spousal support.
In appropriate circumstances, a court may award support retroactively to the date of separation, even if the support claim was made at a later time. If the parties disagree about when the separation occurred, the disputed date may therefore affect the period for which support is payable.
Depending on the circumstances, a retroactive support claim may extend as far back as three years before the claim was formally made. As a result, even a difference of several months in the separation date can have a significant impact on the amount of support owing.
What Happens to Property Acquired After Separation?
The separation date can also affect how property acquired after separation is treated.
If the property acquired after separation is capable of producing an income, that income will be considered for the purposes of determining the amount of support payable, if any.
Pension interests are subject to specific family law valuation rules. The valuation date is also important in determining the value of a spouse’s pension for the purposes of property division. This is another reason why an accurate separation date matters. It establishes an important dividing line between the parties’ lives together and their lives after separation.
Why Evidence from the Time of Separation Matters
One of the biggest problems with a separation date dispute is that the parties may be trying to reconstruct what happened months or years after the fact.
As time passes, memories can become less reliable, and the parties may have different recollections of when the relationship ended. Contemporaneous evidence can therefore be extremely valuable.
Documents that may help establish the timing and circumstances of separation can include:
- Emails, text messages or other written communications discussing the breakdown of the relationship;
- Messages to family members or friends;
- Correspondence with a counsellor or therapist;
- Communications with a lawyer;
- Bank and credit-card statements;
- Changes to joint accounts or financial arrangements;
- Documents showing a change in living arrangements;
- Lease or mortgage documents;
- Evidence of separate bedrooms or household arrangements;
- Tax and employment records;
A statement made shortly after the relationship ended can sometimes be much more persuasive than a recollection produced years later for the purpose of litigation.
Speak with an Experienced Family Lawyer at Gelman and Associates regarding the Year of Separation in Ontario
The date of separation can be one of the most important dates in a family law matter. Although it may seem straightforward at the time, establishing the correct date can become more complicated as circumstances change and memories fade.
The significance of the date extends beyond the one year separation period required for a divorce. For married spouses in Ontario, the separation date may determine the valuation date for property division and can affect the valuation of significant assets and debts, pension interests, equalization, and, depending on the circumstances, support claims.
Where the parties disagree about when they separated, the court will look at the evidence and the circumstances of the relationship as a whole. This is why documenting the circumstances surrounding separation and preserving relevant records can be important, particularly where significant financial issues are involved.
A date that may seem relatively unimportant when a relationship ends can have significant financial consequences years later. Establishing and documenting the separation date carefully can help reduce uncertainty and provide important evidence if the date is later disputed.
If you are separated or have questions about your separation date and how it may affect your rights and obligations, our family law team can help you understand your options and determine the appropriate next steps. Contact Gelman and Associates to schedule a confidential, complimentary consultation today.
