The date of separation can be critical in family law. For married couples, it is generally the date of valuation for determining net family property. For both married and common law couples, the length of your relationship can impact the duration of spousal support payments, if applicable. Where parties agree on the date of separation, this is generally not at issue. The courts do not in ordinary course independently investigate separation dates, absent concerns of divorce fraud or other serious circumstances.
Where parties do not agree on the date of separation, significant time, effort, and legal fees can go into resolving this issue. Per the recent case of Al-Sajee v. Tawfic, 2019 ONSC 3857, determining separation requires a contextual analysis of the relationship, social practices, living arrangements, and other circumstances. No one factor in this analysis is determinative of separation occurring.
You may be surprised to learn the following about separation:
- There is no such thing as “legal separation”: Unlike divorce, there is no application process or other bureaucratic procedure to be separated.
- You can be separated and still live together: Continued cohabitation does not preclude couples from separating in the eyes of the Court. In fact, given the financial realities of separation, it is common that separated couples continue to live together for some period of time.
- Sexual intimacy is not determinative of separation: You can lack sexual intimacy and not be separated, and conversely, you can be sexually intimate and still be separated.
- An affair does not necessarily constitute separation: Being involved with another party does not definitively indicate separation has occurred.
- Separation only takes one party: Couples do not have to agree that they are separated for separation to occur. Where one party has clearly expressed an intention to separate, and behaved accordingly, that will generally suffice.
Separation can be complicated, our expert family team at the Ross Firm can help. Contact [email protected] to set up your consultation.
Disclaimer: the above information does not constitute legal advice. We strongly recommend obtaining independent legal advice with respect to any legal issues.
