Agreeing on a date to call the “date of separation” is important for a number of reasons.
Sometimes it is quite clear when the separation occurs – there is a sudden event that ends the relationship. For example, one spouse may leave the home, or one spouse may move to a different bedroom or part of the home. However, it is also possible for a relationship to gradually deteriorate over time, and it is not necessarily clear when the relationship ended. This blog addresses some of the issues relating to date of separation.
Many people incorrectly believe that they are “legally separated” when they have a signed Separation Agreement. In fact, couples are separated when they commence living “separate and apart”, whether under the same roof (i.e., still in the same home) or in separate residences. Therefore, spouses are “legally separated” before they have signed a Separation Agreement which confirms their date of separation. That is, the date of separation will be set out in the Separation Agreement, and is used to determine a number of issues for the separation (including property settlement and equalization, financial disclosure forms, pension forms, divorce application forms, and support payments).
First, the date of separation is the date used in Ontario to determine property settlement for separating married couples. Property is valued on the date of separation for the purpose of calculating net family property and equalization. Lawyers call the date of separation the “Valuation Date” or “V-Day”. This is always a single date, and must be agreed between couples, or decided by a court.
In Ontario your property is valued on that day, and it will determine how your property is divided for separating married couples. Except in rare cases, such as where a party proves that they have an equitable or trust ownership interest in a particular piece of property, there is no sharing in the value of assets or in the debts or liabilities incurred by a party after V-Day. The value of the property, liabilities and debts (subject to any exclusions and deductions) that exist on V-Day will be shared if the parties are married. The date of separation may also be of interest to an unmarried (“common law”) couple if the couple is asserting a joint venture/constructive trust (such as where an unmarried couple invested in property together during the relationship and share that investment upon separation).
Another important reason for knowing the date of separation is so you can start to complete standard form Financial Statements (such as Form 13.1 available on the Attorney General of Ontario website) for disclosure. The value of the property, liabilities and debts (and any proof or valuations) are listed as at the date of separation. Therefore it is important to agree on the correct date so that you do not waste your time and money starting to complete forms with an incorrect, or disagreeable, date. The same is true for knowing the date of separation when you complete the standard FSCO forms for valuing Ontario pensions or providing information to pension actuaries for valuing federal pensions. If you are having difficulties deciding the date of separation, or cannot agree together on a single date of separation, you should seek the advice of your individual lawyers first before starting to complete these standard forms.
Another important reason for knowing the date of separation is it starts the clock running on the one-year period that married spouses need to be separated to receive a divorce. Under the Divorce Act, a court may grant a divorce in the event that the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding.
Finally, determining the date of separation is relevant to the consideration of retroactive support (child and spousal support). In other words, if the date of separation is sometime in the past, then child or spousal support would be owed retroactive to the date of separation and can also be discussed and included in your Separation Agreement.
How can a couple determine the date of separation?
There is no one single definition of what decides the date of separation. However, if you are planning on staying out of court and keeping your separation amicable then the two of you will need to agree on a date of separation.
There are several criteria a court would look at as a guide when determining the correct date of separation or V-Day, and these are listed below. You cannot just pick the date based on what is most advantageous to you, and you should not just pick the date that one of you moved out of the home as the date of separation without also considering the other factors. The date of separation is the day that the couple separated without any reasonable prospect that they would resume cohabitation. A reasonable prospect must be more than just wishful thinking. As well, “rare moments of friendliness or civility,” such as a separated couple going out to dinner together, do not mean that the spouses are not separated. For most couples the date of separation can be agreed between themselves, or with the help of their individual lawyers. If you have difficulties agreeing on the date of the separation then a lawyer-trained mediator may be able to assist you in those discussions. If you still cannot agree then you will need to consult your individual lawyers.
Give some thought to these type of criteria before selecting the date and pick the date that best reflects the criteria for establishing the date of separation:
- communication between a couple
- communications about separation (e.g., with family, friends, professionals, etc)
- discussion of family problems (e.g., with family, friends, professionals, etc)
- physical separation (such as, sleeping and living in separate bedrooms, or different parts of the home, etc)
- absence of sexual relations between a couple
- adultery
- absence of joint social activities
- social activities together such as meal pattern (e.g., joint or separate), vacations (e.g., joint or separate), activities at home (e.g., joint or separate)
- performance of household tasks (e.g., preparation of meals)
- attitude and conduct of the community toward each spouse/partner and as a couple
- visiting each other’s family
- method in which a couple filed income tax returns (e.g., filing as separated or married)
- gifts between a couple
- attendance at consultation with your individual lawyer