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  • Writer's pictureJared Davies, Lawyer

Separated while living under the same roof

The separation date is of great importance as indicated by its other name, the “valuation date”. It is one of two important dates in calculating equalization or division of the parties’ net family property, the other being the date of marriage. Unlike the date of marriage, which is evidenced by a certificate, the valuation date may be disputed. The valuation date can get particularly cumbersome when the parties separate while living under the same roof.

The Family Law Act, governing equalization, defines the valuation date as the earliest of the following dates:

1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

2. The date a divorce is granted.

3. The date the marriage is declared a nullity.

4. The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.

5. The date before the date on which one of the spouses dies leaving the other spouse surviving. (“date d’évaluation”)

For purposes of this post, the usual separation date is defined by paragraph 1, “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation”.

The Superior Court recently re-confirmed whether separation can still exist while living under the same roof in Taylor v Oliver, 2022 ONSC 7186. The court followed a previous decision, stating that it is a …well-known proposition that parties can be separated while living under the same roof.

In citing Oswell v Oswell, the court continues with some of the relevant considerations when analyzing whether parties are living separate and apart while under the same roof:

(a) whether there been a physical separation, which can be established by the spouses occupying separate bedrooms;

(b) whether there has been 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";

(c) the presence or absence of sexual relations, but this is not conclusive;

(d) the discussion of family problems;

(e) any communications between the spouses;

(f) the presence or absence of joint social activities and the meal pattern; and

(g) the performance of household tasks, but also having regard to the circumstances as they occurred during the marriage (for example, help may have been hired).

The court goes on to discuss how the true intent, as opposed to the stated intent, of the parties is very important for the court in determining the separation date. One way this might be examined, the court says, is to look at how the parties filed income tax returns. The court concludes that when spouses start making plans for his or her assets separate from the other spouse, courts can consider this as one of the indicators that there is no prospect of reconciliation.

Ultimately, the entire context is relevant when courts consider whether parties are living separate and apart under the same roof. The case of Chan v Chan, 2013 ONSC 7465, cited in Taylor v Oliver above, concludes:

"[e]very marriage is different and the courts must look to the various objective factors to determine if the parties are living separate and apart... Some marriages are by nature stormy and erratic. The Court must exercise caution and differentiate between a couple living together albeit with some unhappiness and dissention, on the one hand, and a situation where they are instead both living there but as two separate individuals.... A marriage may be at times stormy, but ongoing..."

Obvious takeaways? There is no doubt that parties can be considered separated while living under the same room. The leading case of Oswell v Oswell lists multiple different factors when determining whether a party is truly living separate and apart while under the same roof. Ultimately, the courts will be looking for the true intention of the parties involved when deciding whether separation occurred.

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