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How to Determine Date of Separation

How to determine date of separation

The date of separation or valuation date (for financial purposes) is the date when you and your spouse separated. The date of separation is important in many ways – in order to obtain a divorce, you need to live separate and apart for one year and the day of separation is the day you start counting one year. Married spouses have property rights to share the value of the properties and assets accumulated during the marriage and for that purpose, the date of separation is considered the valuation date. If there are child support and spousal support issues involved in a family law proceeding, such child support and/or spousal support shall be determined from the date of separation.

How to Resolve Dispute Between Spouses on Date of Separation

When the date of separation is disputed between the parties, the jurisprudence has provided us some guidance to determine the date of separation and for that purpose, I will rely on Greaves v. Greaves, 2004 CanLII 25489 (ON SC):

[34]                          It is true that every marriage is different. Parties can live apart under the same roof, and can still cohabit even if they live in separate locations.  The court must look at various objective factors to determine if the parties are living apart or not.  Oswell v. Oswell [5] perhaps best sets out the criteria for the court to consider.  These include the following:

(a)              there must be a physical separation…  Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;

(b)              there must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;

€               the absence of sexual relations is not conclusive but is a factor to be considered;

(d)              other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.

€              Although the performance of household tasks is also a factor…weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.

(f)               The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent… [a]n additional consideration…in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns.

Documentary Evidence to Establish Date of Separation

You may retrieve the information from emails, texts/WhatsApp/Facebook messages, where your partner is confirming the separation. You may also see if you or your spouse has filed income tax returns with the martial status “separated”. If you have any adult witness who was present at the time when your spouse confirmed that s/he is separating, that witness can affirm that information. You may also see if your spouse has separated his/her bank account and any travel itinerary showing that s/he is going on vacation without you.

If you need help with your Divorce or Family Law matter, please contact IQBAL LAW and we have the skills and experience to handle your family law proceedings.