When you have an initial consultation with one of the lawyers at GDH Family Law, one of the first things we will ask you is whether you and your spouse are already separated, and if so, on what date. Potential clients are often unsure on the date of separation, or sometimes even on whether they are separated at all.
What is the Date of Separation and Why is it Important
The ‘date of separation’ – also referred to as the ‘valuation date’ – is the exact day or date on which two spouses separate (or otherwise end their relationship, be it a marriage or common law partnership), with no reasonable prospect of reconciliation.
Determining an accurate separation date is key and often the first step in a family law matter. The date of separation is important for several reasons:
- It can impact when you get a divorce: To get a divorce in Canada, you have to show that your marriage has broken down, and one of the ways of demonstrating this is by being separated for one year. This one-year period is calculated from the date of separation onwards.
- It effects how property is divided: Married spouses are legally entitled to share in the value of property or asset growth that occurred for each spouse throughout the marriage. A spouse is entitled only to share in the value of an asset as at the date of separation, not in the value of the asset after the date of separation (unless the asset is jointly owned by both spouses). The date of separation thereby becomes the reference point for when property and assets are valued/appraised.
- It serves as the starting point for the countdown of limitation periods: Married spouses making a claim for equalization are required to do so within the earliest of (a) 6 years from the parties’ date of separation, (b) 2 years after a divorce has been ordered, or (c) 6 months after the death of the first spouse. If a claim is not made within these periods, the claim can be barred or lost entirely.
How Do You Determine or Prove the Date of Separation
The easiest and most obvious way of determining a date of separation is looking to when one party moved out of or away from the matrimonial home.
That said, considering many families’ financial situations and whether they have children, it is common for spouses to be separated whilst residing under the same roof and in the same home.
When determining the date of separation, we are looking at whether the spouses are living separate and apart, and the following factors may be considered:
- Sleeping in separate bedrooms or spaces;
- Not attending social or family gatherings/activities together;
- Separating monies or finances;
- Doing things independently (having meals, celebrating holidays, personal chores like laundry, going on vacations, etc.).
In addition to the above-mentioned factors, we may also look at or consider the following: emails or messages between the spouses where they discuss separating; letters or filings made to government entities like the CRA (i.e. filing your tax returns as ‘separated’); loan applications; communications with a marriage counsellor, mediator, doctor, lawyer, realtor, family, friends, neighbours, or adult children; occasion cards or presents (for an anniversary, birthday, Valentine’s Day, etc.); photos or social media posts, etc.
What If the Spouses Disagree about the Date of Separation
It must be noted that one spouse can end the relationship without the other spouse’s consent or agreement. Because a separation can be initiated unilaterally by one spouse, oftentimes the other spouse is unaware or unable to understand this. This is why it is recommended that the date of separation or intention to be separated on part of one spouse be documented in some way.
If parties cannot prove or simply agree on a date of separation, we look to examples of facts that may support or point to when the parties knew or ‘ought to reasonably have known’ that their relationship was over and not going to continue. Keep in mind that no one factor or example is definitive – often it is a combination of several factors that lead to the conclusion that the parties have separated or ought to have known that they were separated.
Contact GDH Family Law for More Information
At GDH Family Law in Vaughan, our team of skilled family and divorce lawyers can assist you in determining your date of separation and can further advise on how to move forward in the separation process. If you have questions about your date of separation, or your family law matter in general, please contact us via our contact form or call us at 416-535-6944 to schedule a free initial consultation.