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How to determine your date of separation.

The first step in negotiating (or litigating) a resolution to the issues arising from the breakdown of a marriage is for each of the parties to prepare his or her sworn Form 13.1 Financial Statement. The Form 13.1 requires parties to disclose their respective assets and liabilities as at three dates: the date of marriage, the date of separation, and “today”. 1

In some circumstances, parties do not agree on the date of separation. This can be the case where the parties continued to live separate and apart in the matrimonial home, or where parties regularly spent long periods of time separated even though they were happily married. Courts are often called upon to make a finding with respect to the date of separation. In order to do so Courts will consider what are referred to as “indicia of separation”. These indicia include (but are not necessarily limited to):

  • Physical separation (this can be physical separation where one party moves out of the matrimonial home, or it can be where the parties continue to reside separate and apart in the matrimonial home, but they no longer sleep in the same bedroom);
  • Withdrawal by at least one party from the matrimonial obligation with the intent of destroying the matrimonial consortium (i.e. did one or both of the parties intend to end the marriage?);
  • Lack of sexual relations;
  • Lack of communication between the spouses and discussion of family problems;
  • Absence of joint social activities;
  • Meal patterns (if the parties previously ate dinners together, have they stopped doing so?)
  • Performance of household tasks;
  • Changes to a party’s financial arrangements (for example, if the parties previously had a joint family account, if one party closed that account that could be considered a sign that the parties had separated);
  • The conduct of the parties towards their respective families and vice versa (for example – if the parties previously attended family events together, if they have stopped attending events for the other’s family that could be considered a sign the parties have separated); and
  • The financial arrangements between the parties regarding payment of daily necessities (for example – if one of the parties previously paid all of the household expenses, a request that the other party begin contributing to the expenses may be an indicia of separation). 2

Where parties cannot agree on the date of separation it is helpful to consider the above list of indicia to see whether the party’s evidence support his or her claimed date of separation. A failure to consider the reasonableness of a party’s claimed date of separation may result in that party paying legal fees that may have otherwise been unnecessary.

 

1 In the case of the Form 13.1 Financial Statement “today” means whatever information is most recently available. As parties are required to update their sworn Financial Statements in advance of any Conference in the context of litigation, the “today” values will necessarily fluctuate.
Ogilvy v. Ogilvy, 2006 CarswellOnt 5812 (Ont. S.C.J.) at paragraph 37.

About the Author

Michelle has been practicing exclusively in the area of family law since her call to the bar in 2012. She focuses on all areas of family law.

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