Date of Separation – Divorce, Separation and Family Law

Family Law Act, section 3(4) states:

For the purposes of this Act,

1. spouses may be separated despite continuing to live in the same residence, and
2. the court may consider, as evidence of separation,
   1. communication, by one spouse to the other spouse, of an intention to separate permanently, and
   2. an action, taken by a spouse, that demonstrates the spouse’s intention to separate permanently.

Madam Justice Choi wrote an article titled “Three Issues Arising from the Property Division Section of the New Family Law Act”; Source: British Columbia Couriers Education Seminar, Trial Courts and the Rule of Law National Justice Institute, material prepared by Grace G. Choi, Davis LLP, November 16, 2012.

At pages 13 to 18 Madam Justice Choi states:

“In some cases, of course, it will be quite clear when separation occurs. Frequently, however, this may be complicated, for example, when spouses remain in the same household post-separation or experience periods of reconciliation. As the Ontario Superior Court of Justice noted in Taylor v. Taylor at paragraph 1:

At what point between the marriage date and the divorce date, did this marital relationship die? This question, as phrased, suggests an almost mechanical approach to such a significant and cherished relationship. The reality is that most people, and the Taylors are no exception, make a significant emotional investment in a marriage relationship which becomes, with the passage of time, a part of their very being. Understandably when a relationship is ailing the emotional tapestry that each party had originally brought to the relationship impacts upon the partner’s view as to the health and future of the relationship. Such relationships rarely end in a twinkling of an eye, but rather whither over time.

In addition, there are many financially motivated reasons why a spouse may want to manipulate the date of separation. These include delaying separation in order to increase his or her share of family property, and hastening separation to avoid responsibility for family debt.

The annotation to section 83 (reconciliation periods) of the Annotated Family Law Act suggests that the Legislature did not intend to restrict the interpretation of “separation” according to existing case law. Rather, section 83 is intended to supplement it. There is an existing body of case law discussing the indicia of “living separate and apart”. The Annotated Family Law Act suggests that “courts will likely look to the various indicia set out in cases interpreting section 8(2)(a) of the Divorce Act … and the definition of ‘spouse’ under section 1 of the Family Relations Act for guidance.” But it is questionable whether those cases actually provide the best guidance for determining when spouses separate for the purposes of section 81. The difficulty was explained in Strobele v. Strobele by the Ontario Superior Court:

…. the principles for fixing a separation date under section 4(1) of the Family Law Act are not necessarily the same as those developed under the Divorce Act for living separate and apart. The goal under the FLA is to fix the date on which the economic partnership should fairly be terminated. The goal under the Divorce Act is to establish the date on which the parties may obtain a divorce.

In Strobele, the court noted that in considering when spouses separate and when there is no reasonable prospect that they will resume cohabitation:

… it is helpful to keep in mind the purpose for which the question is being asked. It is to set the valuation date, the date at which the parties ceased being one kind of entity for financial purposes – a couple – and became another, a separated couple. Surely it is obvious that there is no one moment in time that can be fixed as the objectively true separation date. Rather the Court should determine the date on which it is fair that the parties no longer share the financial consequences of being married.

The Supreme Court of Canada has emphasized the intention of the spouses to end their relationship in determining when spouses separate. Jurisprudence from British Columbia similarly suggests that a key factor in determining when spouses separate is intention, rather than simply ceasing to live together in the same residence. In addition, commonly listed indicia of separation include the following, set out in Eisner v. Baker:

(a) the absence of sexual relations,

(b) a clear statement by one of the parties of his or her desire to terminate the relationship,

(c) physical separation of the parties into different rooms of the same house or different residences,

(d) the couple no longer presenting themselves to the outside world as a couple, and

(e) the method in which the spouse filed income tax returns.

This list is mirrored in a frequently cited list of indicia set out by the Ontario courts in Oswell v. Oswell (1990), 74 O.R. (2d) 15 (H.C.J.), aff’d (1992), 12 O.R. (3d) 95 (C.A.). The British Columbia courts must, however, be cautious in determining how much of the Ontario case law will apply, because Ontario’s valuation date is the separation date whereas the valuation date under section 87 of the FLA is the date of a hearing or agreement in dividing family property and debt. The reasonable prospect of reconciliation in section 83 of the FLA may also factor into the test.

An alternative approach to determining when spouses have separated is suggested by the case law dealing with the commencement of cohabitation. This may be useful because identifying the commencement of cohabitation often raises the same problems, in reverse, as those involved in separation.

In this context as well, the courts have listed the factors they evaluate in determining when cohabitation actually began. For instance, a list set out in Molodowich v. Penttinen was endorsed by the Supreme Court of Canada in M. v. H. as follows:

Molodowich v. Penttinen sets out the generally accepted characteristics of a conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal. … In order to come within the definition, neither opposite-sex couples nor same-sex couples are required to fit precisely the traditional marital model to demonstrate that the relationship is “conjugal”.

In British Columbia, the list of factors set out by the Court of Appeal in Gostlin v. Kergin mirrors the Molodowich factors and is a useful starting point for the analysis.

In summary, while the FLA will change the date when the right or obligation of family property and debt crystallizes, it seems likely that the principles for determining when spouses separate will remain substantially similar to the principles outlined in the case law summarized above. As such, this determination will remain highly fact-specific.”