The Law Related to Separation Date
McBennett v Danish 2021 onsc 3610
Madam Justice Chappell beautifully summarizes the law related to separation date. Often I've couples disputing the date of separation of their marriage - this has an impact on equalization and support. Hopefully when the reader goes through these points below which are exhausted, the reader will have a good idea about date of separation.
The Judge states as follows:
Ascertaining when parties cohabited and when they began to live separate and apart for the purposes of divorce entitlement and spousal support requires a careful analysis of the unique realities of the parties’ relationship, routines, social and other habits and practices and living arrangements over time. In deciding how much weight, if any, to give to any specific factors, the court must carefully assess whether there have been any real changes in regard to those factors since the parties were clearly together in a conjugal relationship. In addition, because of the particular dynamics of each relationship, no single consideration will be determinative of whether spouses are cohabiting or living separate and apart; a global analysis and weighing of all factors is required.
The relevant principles and considerations that emerge from the caselaw include the following:
1. There are two aspects to spouses living separate and apart. First, they must live apart from each other, and second, there must be an intention on the part of one or both of them to live separate and apart from the other (Oswell v. Oswell, 1990 CanLII 6747 (ON SC), 1990 CarswellOnt 278 (H.C.), aff’d (1992), 1992 CanLII 7741 (ON CA).
2. To live “apart” requires a physical separation between the parties (Oswell, at para. 13). This means that the parties cannot be cohabiting in a conjugal relationship (Greaves). However, the fact that they continue to reside in the same home together does not necessarily mean that they are not living apart. Spouses can be living separate and apart under the same roof (Oswell, at para. 12; Greaves, at para. 34; Neufeld, trial decision, at para. 6; S.(K.L.) v. S.(D.R.), 2012 NBCA 16 (C.A.), at para. 20).
3. By the same token, the fact that the spouses have two residences for a period of time and spend significant periods apart in the two homes is not determinative of whether they are living separate and apart. As the Ontario Court of Appeal stated in Lachman v. Lachman, 1970 CarswellOnt 122 (C.A.), at para. 12, spouses in these circumstances will only be considered to be living separate and apart if at least one of them intends to end the marital relationship. Where the parties lived primarily in separate residences, the court must examine all of the other circumstances surrounding their relationship to determine whether they were, in fact, living separate and apart. The reasons for maintaining separate residences will be one important consideration (Rosseter v. Rosseter, 2013 CarswellOnt 2013 (S.C.J.), at para. 14).
4. In order to establish the requisite intent to live separate and apart, there must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the matrimonial relationship (Oswell, at para. 14; Greaves, at para. 34). The term “consortium” does not have a precise or complete definition, but refers broadly to the companionship, love, affection, comfort, mutual services, support, and sexual relations typically involved in the marital relationship (Kungl v. Schiefer, 1960 CarswellOnt 72 (C.A.), at para. 11, varied 1962 CarswellOnt 59 (S.C.C.); Molodowich v. Penttinen, 1980 CarswellOnt 274 (Dist. Ct.), at para. 16).
5. The law does not require a meeting of the minds regarding the intention to separate; a physical separation, coupled with the intention of one party to live separate and apart, is sufficient (Strobele v. Strobele, 2005 CarswellOnt 9201 (S.C.J.), at para. 30; S.(H.S.) v. D.(S.H.).
Unlike the decision to marry, the decision to separate is not a mutual one. It is a decision which is often made by one party over the objections of the other. Those protestations matter not; once one party has decided to permanently separate and has acted on it, the other party has no ability to stop the process or object to it.
6. A clear statement or unequivocal act by one of the parties of their desire to terminate the relationship will be very relevant to the determination of whether parties are living separate and apart (O’Brien, at para. 52; S.A.H. v. I.B.L., 2018 BCSC 544 (S.C.), at para. 17). However, the intention to separate need not be unambiguously relayed to the other spouse by way of a verbal expression of settled intention. In the context of both common law relationships and married couples, the courts have held that a relationship has come to an end when either party regards it as being at an end, and that party by their conduct has demonstrated in a convincing manner that their state of mind on this issue is a settled one (Sanderson v. Russell (1979), 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429 (C.A.), at para. 432; Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 (S.C.C.), at para. 42; S.(H.S), at para. 43; Naegels v. Robillard, 2019 ONSC 2662 (S.C.J.), aff’d 2020 ONSC 3918 (Div. Ct.) trial decision, at para. 37).
7. In assessing whether there is an intention on the part of one or both parties to live separate and apart from the other, the court must strive to determine their true intent and not simply their stated intent at the time of the hearing (Oswell, at para. 18; Greaves, at para. 34; R.(T.) v. K.(A.), 2015 ONSC 7272 (S.C.J), at para. 47).
8. A party’s intention to live separate and apart will not necessarily be broken by brief references by that party to the possibility of reconciliation where no serious steps were taken to move towards such a goal (Nearing, at para. 59).
9. Other relevant considerations in determining whether the spouses are living separate and apart include the following:
a) The degree to which the parties were intimate with each other is a relevant consideration (Oswell, at para. 15; Rosseter, at para. 38; Anthony v. Anthony, 2019 ONSC 650 (S.C.J.), at para. 42). However, the absence of sexual relations is not a conclusive indicator that the parties are living separate and apart (Newman v. Newman, 1970 CarswellOnt 123 (C.A.); Cooper v. Cooper (1972), 1972 CanLII 1901 (ON SC), 10 R.F.L. 184 (Ont. H.C.); Oswell, at para. 15). Similarly, the fact that the parties have engaged in sexual relations is not determinative of whether they remain separate and apart or have reconciled. Parties who are generally living separate lives in separate homes may be found to be living separate and apart despite occasional incidents of sexual intimacy and discussions of reconciliation (Greaves, at para. 36; S.(K.L.), at para. 23; Wells. v. King, 2015 NSSC 232 (S.C.), at para. 23). However, the presence of sexual relations while the parties are still physically living with each other will be a strong indicator that they continue to cohabit in a conjugal relationship (Tokaji v. Tokaji, 2016 ONSC 7993 (S.C.J.), at para.26).
b) Whether the parties have been involved romantically with other people (Rosseter, at para. 39). However, the fact that they have had relationships with other people is not determinative either, particularly if the other party was unaware of the other relations (Neufeld, trial decision, at para. 75).
c) Whether the parties have continued to discuss family issues and problems and communicate about daily issues (Greaves, at para. 34; Cooper, at para. 12; Oswell, at para.
d) Whether there have been any changes in expectations regarding their accountability to each other for daily activities (Oswell, at para. 37).
e) The extent and nature of their contact with each other, including whether they have continued to participate in joint social activities (Cooper at para. 15; Oswell, at para. 16; Greaves, at para. 34; Torosantucci v. Torosantucci, 1991 CanLII 12851 (ON SC), 1991 CarswellOnt 262 (U.F.C.); Rosseter, at para. 26; Anthony, at para. 42). In assessing any contacts, the court should consider whether the events were evidence of an ongoing relationship or reconciliation or simply “rare moments of friendliness or civility” (Torosantucci; see also Daley v. Gowan, 2015 ONSC 6741 (S.C.J.), at para. 66).
g) Attendances by both parties with their children at family events, activities and even family vacations are relevant but not determinative, as these may simply reflect the parties’ efforts to co-parent in the best interests of the children post-separation (Volcko v. Volcko, 2015 NSCA 11 (C.A.), at paras. 10-11; Neufeld, trial decision, at para. 75(j)).
h) Have the parties continued to share and participate in each other’s daily routines as in the past, such as eating meals together and sharing household chores? (Cooper, at paras. 13 and 14; Oswell, at paras. 16 and 17; Rosseter, at para. 20; Henderson; Anthony, at para. 42).
i) Whether they have celebrated special occasions together (Oswell, at para. 37; Rosseter, at para. 29)
j) Whether they have purchased gifts or exchanged other tokens of affection with each other (Oswell, at para. 29; Rosseter, at para. 29; Neufeld, trial decision, at para. 75).
k) Whether they have supported each other with respect to extended family obligations, through difficult times and with each other’s personal issues (Rosseter, at para. 31; Henderson).
m) Documentary evidence respecting their relationship status is also relevant. For example, the manner in which the parties described their status in important documents, including
Income Tax Returns, and whether they claimed any benefits that are conditional on their relationship status are important considerations (Czepa v. Czepa (1988), 1988 CanLII 8647 (ON SC), 16 R.F.L. (3d) 191 (Ont. H.C.J.), at para. 13; Oswell, at para. 18; Greaves, at para. 34; Joanis v. Bourque, 2016 ONSC 6505 (S.C.J.), at para 25; Rosseter, at para. 47; Henderson, at para. 35; Tokaji, at para. 25). Once again, however, these considerations are not determinative, and the court should consider any explanations which either party may proffer before determining the weight, if any, to accord to them (Morin v. Morin, 2011 ONSC 1727(S.C.J.), at para. 27; Anthony, at para. 42).
n) If the parties have retained a counsellor or mediator, the purpose for which the mediator was consulted may also be of assistance in determining whether the parties have separated (Oswell, at para. 28).
o) Whether there have been any changes in the way the parties manage their financial affairs, including whether they have taken steps to separate their financial dealings (Newton v. Newton, 1995 CanLII 17875 (ON SC), 1995 CarswellOnt 84 (S.C.J.); Rosseter, at para. 41; Tokaji, at para. 24; Anthony, at para. 42).
p) Have the parties continued to share the use of assets? (Rosseter, at para. 43).
q) The parties’ behaviour towards each other in the presence of third parties (Rosseter, at para. 44).
r) Whether the parties have taken legal steps to terminate their relationship and resolve issues relating to their separation (Oswell, at para. 35; Tesfatsion v. Berhane, 2013 CarswellOnt 213 (S.C.J.), at para. 53; Rosseter, at para. 49). However, this factor is not decisive and may be given little weight if no further steps were taken and other factors point to a continuation of their involvement with each other as a couple (Rosseter, at paras. 49-51).  Drawing on the principles and considerations outlined above, I conclude that the parties have resided separate and apart since March 1, 2017, and that Tracy maintained a consistent intention to live separate and apart from Craig after that point. Craig maintained hope that the parties would reconcile until March 2018, but I find that Tracy did not share this sentiment.
My conclusion respecting the parties’ separation date is based on the following:
1. Craig moved out of the matrimonial home on March 1, 2017, soon after Tracy learned about his extra-marital affair with Lauren Korody. He testified that he left due to the loss of physical and emotional intimacy in the relationship, but that he did not see this as a permanent step. However, I find that he continued to be involved with Ms. Korody during the early months of 2017, and that Tracy viewed his move out of the home differently. Craig testified that Tracy presented as impartial to his decision to leave and that she indicated that she had no interest in pursuing counselling. Tracy confirmed that she was relieved that he left.
2. The parties never lived together under the same roof again after March 1, 2017.
3. Craig began to pursue a reconciliation with Tracy in early April 2017. However, Tracy indicated very clearly that she would not even consider the possibility of a reconciliation for a full year, and not until he obtained help for his behaviour and anger management issues and demonstrated that he could be a better father and person. Tracy testified that she clearly gave this message to Craig many times throughout 2017.
4. Craig began counselling sessions with Ms. Carolyn Agnew-Hall in the spring of 2017 in an attempt to address his behaviour that led to his infidelities, and in the hope that he could repair the marriage. He also saw Dr. Belicki further to Tracy’s suggestion that he undergo a psychological evaluation. Tracy attended an appointment with Dr. Belicki to share information with him about Craig, as well as the feedback appointment. In addition, she and Craig had a joint counselling session with Ms. Agnew Hall on November 23, 2017, and Tracy attended some individual sessions with her after that meeting. However, as I will discuss in further detail below, I find that the focus of these sessions from Tracy’s perspective was to support Craig in his efforts to become a better father and person, and that she did not stray from her intention to remain separated.
5. At the recommendation of Ms. Agnew-Hall, Craig read a book called “Hold Me Tight,” which focussed on how to repair relationships. He asked Tracy if she would consider reading the book and attending a workshop relating to the book, but she stated that she had no interest in doing so.
6. Commencing in the summer of 2017, Tracy gave Craig many opportunities to prove that he could be a consistent parent to Maisie. As I will discuss in further detail later on, from approximately July 2017 until March 2018, she permitted Craig to come to the matrimonial home on a very regular basis to see Maisie and assume parenting responsibilities. In addition, the parties participated in numerous activities together with Tracy in the community. However, Tracy testified, and I accept, that she never wavered on her position that she would not even consider the possibility of reconciling until Craig had proven himself to be a good person and parent for a at least a year. She states that she chose to be present during Craig’s time with Maisie for the child’s sake to monitor how visits went, and not with the goal of resuming her relationship with Craig.
7. Craig’s lease on his apartment on Yates Street ended in November 2017, and he mentioned to Tracy that he did not know where he should go. Tracy was unwilling to consider resuming cohabitation at that point and suggested that he could probably stay at the Yates residence on a month to month basis.
8. On their anniversary on December 4, 2017, Tracy told Craig in a text that she was slowly lifting her guard and feeling like there was hope for a new beginning. Craig testified that this was the one time throughout 2017 that he saw any glimmer of hope with respect to his relationship with Tracy. However, there were no further statements or actions on Tracy’s part after that point which raised any suggestion that Tracy was interested in resuming a conjugal relationship.
9. Tracy allowed Craig to stay at the matrimonial home overnight on Christmas Eve in 2017, so that he could wake up in the morning with Maisie. However, the parties slept in separate rooms.
10. Both parties agree that there was no physical intimacy whatsoever between them after March 2017, including simple gestures such as holding hands. Several efforts on Craig’s part to introduce intimacy into their communications or to suggest physical intimacy were met with strong disapproval and push-back from Tracy. Craig and Tracy had scheduled a joint session with Ms. Carolyn Agnew-Hall for March 22, 2018 to discuss whether any steps could be taken towards a possible reconciliation. However, as late as February 25, 2018, Tracy reacted negatively when Craig suggested playfully that she give him a massage if she failed in a deal that she lose 20 pounds, responding by stating “Ew no thanks.”
11. Although the parties had some outings with Craig’s extended family after March 2017, they did not celebrate any special occasions with Tracy’s extended family members after that point. In addition, they did not socialize with any friends or work colleagues as a couple after that time.
12. Tracy insisted that Craig not purchase anything for her for Valentines Day in February 2018.
13. Craig made numerous generous gestures towards Tracy in 2017, including purchasing a new van jointly and sharing the lease payments and buying jewellery for her. However, there is no evidence that Tracy reciprocated by purchasing any gifts for Craig.
14. The parties went on a cruise with members of Craig’s family in March 2018. However, Tracy insisted on having a separate cabin with Maisie, and Craig shared a cabin with his father. Ms. Agnew-Hall testified that there was no discussion during her sessions with the parties prior to the cruise about working towards affectionate gestures or intimacy during the holiday, and that the focus of their discussions about the trip was clearly on ensuring that they both had time to enjoy with Maisie. It was mid-way during this cruise that Tracy learned about Craig’s ongoing communications with Sandra Knof. However, Craig and his sister, Ms. Gregoire, both testified that even before that point, Tracy distanced herself from Craig and did not show any signs of emotional or physical affection towards Craig. Although Craig arranged for him and Tracy to have a dinner together one night during the cruise, he testified that Tracy was not communicative during the meal and had no interest in continuing the evening together after the dinner.
15. The parties did not have any time alone with each other after March 2017 apart from the one awkward meal that they shared on the cruise.
16. The parties maintained their joint bank account until July 2018. However, I conclude based on all of the evidence that this occurred because of Craig’s hope for an eventual reconciliation and his desire to ensure that Maisie’s and Tracy’s financial needs were met, rather than a mutual intention to maintain the relationship.
17. Both parties reported their status as “separated” in their 2017 income tax returns.
18. While Craig clearly hoped for a reconciliation until March 2018, I find that it was readily apparent to him that Tracy maintained a strong and consistent intention to remain separated.  Based on my finding respecting the parties’ separation date, the grounds for divorce are clearly satisfied, and the length of the parties’ cohabitation for the spousal support analysis was 7.5 years. With respect to the divorce claim, I am satisfied that there are no legal bars to granting the divorce. Accordingly, a divorce order shall issue.
Analysis: This is one of the most exhaustive judgements that I have seen referring to various components of what constitutes a separation. In fact I plan to share this with clients and they ask me a question related to what they need to do to fulfil whether a separation has taken place or not.
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