A contentious divorce issue is often the date when property is valued in Ontario. This date is when the couple begins to live separate and apart with no realistic possibility of reconciliation. When there is a minor difference in the dates, there may be no impact on the property. Significant differences in the separation date can have a significant difference on the property value.
The reason this issue is important is because the Family Law Act in Ontario requires the property be equalized on the date of separation. All of the marital property is valued. Then the person with the higher property value gives half of the difference to the other person.
Earlier this summer the Ontario Court of Appeal upheld a trial decision and reviewed the law in this area. The earlier trial decision reviewed the background in detail and provides an interesting analysis when the husband and wife were 14 years apart on the date of separation.
The Importance of the Date of Separation in Ontario
The couple in this case married in 1993 and had two children. The husband was a farmer and the wife worked for the farm. Their house a main part which was two stories and had four bedrooms. There was a single story “in-law” suite attached to the main house. This suite had a single bedroom, kitchen, living area and bathroom.
Early on in their marriage, the couple often rented out the single story residence. When the last tenants left in 2000, the wife testified that she moved into that area of the house. Her evidence was that she had already been sleeping in a separate bedroom from her husband because she didn’t want to disturb him while caring for the young children.
The wife continued to live in the separate residence until an incident in July 2014. At that time, the wife left the residence after the husband had an argument with the daughter. The wife obtained legal advice and served the husband with her intention to obtain a divorce.
Effectively, the husband argued that the couple separated in 2000 after a seven year marriage. On the other hand, the wife argued that the couple separated in 2014 after a twenty-one year marriage. Depending on which party was believed, there would be a significant difference in spousal support as well as property. Spousal support for a twenty-one year marriage would likely be far greater than spousal support after a seven year marriage.
Further, determining the value of property nineteen years prior to trial would be difficult. It is important to note that the there are provisions in the Family Law Act that potentially create a six-year statute of limitations. The Judge addressed this issue and found support for the notion that there was discretion on this point.
How to Determine the Date of Separation in Ontario
The trial heard evidence on how the family functioned. This meant a review of everything from household chores, to vacations, to family visits to sexual relations to how holidays were celebrated. The wife gave evidence that they were still a family, even though she did not share a bedroom with her husband. The husband testified that they had been living separate lives, even though the wife was still living in the same residence.
The Judge reviewed the law on separation and found that there is no “typical”marriage. For example, the Judge found that a couple could be separated while living in the same house. Conversely, a couple could still be married and not living in the same house.
Some indicia of separation was reviewed from a previous case. These were:
- there must be a physical separation, though just because a spouse remains in the same house for reasons of economic necessity does not mean there isn’t a physical separation;
- there must be a withdrawal by at least one spouse from the matrimonial obligation with the intent of destroying the marriage;
- the absence of sexual relations is no conclusive but is a factor to be considered;
- the discussion of family problems, presence or absence of social activities and the meal pattern;
- household tasks are a factor, but must be viewed with their roles during marriage;
- the true intent of the spouse must be determined and not simply the stated intent, such as identifying yourself as married on a tax return.
Sleeping in Separate Bedrooms But Still Married
In the end, the Judge found the date of separation to be in 2014. Though it is possible to be living separate and apart in the same house, in this case, the Judge preferred the evidence of the wife. Some of the important factors were the wife continued to make meals for the family, the family celebrated holidays together and exchanged gifts, the wife continued to do laundry for the family and the couple attended family functions together.
The important point to take away from this case is that no two families are the same. The entirety of the relationship and situation will be examined prior to determining the separation date.
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