What Factor Assist to Determine a Separation Date?

Divorce proceedings often involve a financial or asset component in the form of support and/or property division. The point in time when a marriage can be declared to have ended, namely, the separation date, is an integral fact in these determinations. The separation date affects equalization calculations. Although a separation and valuation date may differ, by in large, the separation date is the date on which property is valued for the purpose of equalization. Family law claims are also subject to limitation periods. For example, under the Family Law Act, an application to divide net family property under section 5 must be filed no later than six years after the date of separation when there is no reasonable prospect to resume cohabitation (s.7(3)(b)).

In Kassabian v Marcarian, the former spouses disputed the date of separation. The husband asserted it occurred on December 10, 2014. The wife argued it occurred on May 16, 2021. If the separation had been in 2014, the wife would be statute-barred from seeking an equalization claim in view of the applicable limitation period.

In considering the case, both the Superior Court (2024 ONSC 2719) and Appellate Court emphasized the fact that a marriage and its breakdown must be assessed on the evidence specific to how a particular couple viewed their marriage and what they expected of it as well as an analysis of their conduct during marriage and upon separation. Determining the date of irreparable breakdown involves an “objective weighing of a range of factors” that include the parties’ intentions as demonstrated in statements and actions” (Appeal Decision, paragraph 17).

Marriages and spousal conduct vary widely. Recognizing this fact, there is no one indicia of when a marriage can be considered to have ended in legal terms, and as the Court notes, even bad marriages may not end in separation. Continued cohabitation is certainly not determinative. The couple’s full history is relevant, and the Court must also understand “what the marriage was all about” (Superior Court, paragraph 20).

The Superior Court considered O’Brien v O’Brien, 2013 ONSC 5750 and Oswell v Oswell, 1990 CanLII 6757 for guidance on the factors indicating a deliberate ending of a relationship. Not every couple takes explicit steps to legally separate or to unequivocally indicate that a separation has occurred without a possibility of reconciliation. The date of separation may need to be inferred from evidence of how the parties continue to live their lives. Some indicia of separation include:

• physical separation, such as separate bedrooms, if not different residences;
• withdrawal of sexual relations;
• cessation of discussions/communications;
• withdrawal from joint social activities;
• meal patterns; or
• performance of household duties.

At trial, the Court considered evidence from the parties, friends, family members, and the notes of a divorce coach. The wife’s evidence included an email she sent to her husband on May 16, 2021, to advise him that she intended to separate, as well as evidence from others that the parties continued to appear in public as a couple and only announced separation to their friends and family in 2021. The wife continued to plan meals and social events for the couple and they were declared married for tax purposes. Of further note, the wife’s divorce coach’s notes did not indicate that the wife saw herself as separated.

The husband, who argued for a separation date more than 6 years earlier than the wife’s, stated they had separate bedrooms since 2014, they had been in marriage counselling in 2013, and there was a lack of sexual intimacy. He stated that they attended events together for the sake of the children. He did, however, continue to wear a wedding ring and the family traveled and spent time together.

Neither party took legal steps to separate. As the Superior Court Justice observed, “I find that, like many couples, the parties were content to have a different marriage than the one they had hoped for. Certainly, they were both hurt, and they pursued their own individual interests while sharing things that mattered to them: time with the children and with their extended families and their community” (at paragraph 37).

Following the trial, the Superior Court concluded that neither party had intended to separate without the possibility of reconciliation in December 2014, and that the day the wife stated to her husband her clear intent to end the marriage in May 2021 was the date of their separation.

The argument on the husband’s appeal was that the Superior Court made errors of fact, failed to address credibility, placed too much weight on the consequences of the wife’s possibly missing the limitation period for a claim, and failed to provide adequate reasons for the Court’s rejection of the husband’s evidence.

The Court of Appeal found in the wife’s favour. The Court of Appeal provided further guidance on how an adjudicator may consider conflicting evidence about a separation date. It took an overview of “generally accepted characteristics of a conjugal relationship,” including shared shelter, sexual and personal behavior, services, social activities, economic support, children, and societal perceptions of the couple (at paragraph 21). It also provided its own list of factors to consider: the nature of the relationship, financial arrangements, interactions with third parties, formal steps to end the relationship, and steps to resume cohabitation (at paragraph 24).

The Court of Appeal listed some guiding principles of “true” versus “stated” intent, recognizing that relationships can be ended unilaterally, the need for a clear and unequivocal communication of a decision to separate, recognition of a marriage’s uniqueness, recognition that separation can be a process rather than an event, and that there is no “checklist” of factors that indicate separation. With these factors in mind, the Court will take an objective assessment of the evidence, asking “if a reasonable person knowing the circumstances would believe the parties had a prospect to resume cohabitation” (at paragraph 17).

These two decisions can provide litigants with useful guidance for how an adjudicator might assess the particularities of a relationship as indicia of when separation occurs, if that date is disputed. The higher Court’s decision also confirms that on appeal, possible misstatements of fact, failure to refer to each and every piece of evidence, or giving different weight or interpretation to evidence does not amount to a palpable and overriding error that merits appellate interference.

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