Date of Separation
The most common questions that arise during a family law consultation are those surrounding the date of separation. Typically, the first question any lawyer will ask is “what is your date of separation?”.
The date of separation is one of the most important dates in a family matter for several reasons, and is referred to throughout the entire proceeding. But, what exactly is the date of separation, and how is it determined?
What is the Date of Separation?
There is a common misconception that in order to be separated, one party must be living separately in a different home. Many clients are surprised to learn that both parties can still reside together, separate and apart, under the same roof and still be considered separated. The key words are separate and apart; this could mean sleeping in different rooms. The date of separation is often synonymous with the valuation date, which is important when determining any limitation periods, eligibility for divorce, and the date used when dividing assets. Sometimes, disagreements about the date of separation can be a matter for trial. Specifically, the parties may have differing dates of separation, which could result in two different numbers and calculations for property division.
Part I of the Family Law Act, section (4)(1) defines the valuation date as the earliest of any of the following:
- The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
- The date a divorce is granted.
- The date the marriage is declared a nullity.
- The date one of the spouses commences an application based on subsection 5(3) (improvident depletion) that is subsequently granted.
- The date before the date on which one of the spouses dies leaving the other spouse surviving.
The most commonly used definition that is applied in family law matters is the date the spouses separate without reasonable prospect of reconciliation; in other words, there is no reasonable prospect that they will resume cohabitation as husband and wife.
How do I know my Date of Separation?
In some cases the date of separation can be very clear. For example, one party may pack up his or her belongings and physically leave the family home with clear intention of not returning, or send written notice to their former spouse indicating clear intent to end the marriage. This may be in the form of an email, letter, or text message. However, in other circumstances it may not be as clear cut. The date of separation can turn into a point of contention in litigation when two spouses are living separate and apart within the same home with differing dates. However, there are documents that may be used to support your proposed date of separation.
This could include the date one party opened a solely owned bank account, when all other accounts during the marital relationship were jointly owned. Other times, perhaps one party has provided written notice to the Canada Revenue Agency (“CRA”) advising of their recent separation. Sometimes, people may update their FaceBook relationship status to “Single”. While this alone may not be enough to determine a date of separation, it does show that spouses’ formed intent of letting his or her immediate network know that they no longer consider themselves in a marital relationship.
If you are unsure about your date of separation or require further clarification, please feel free to give us a call at 647-660-0080, or schedule a consultation online.