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When does a couple actually separate after they say they are separated?

Updated: May 4


Each partner has invested so much emotionally into the relationship that in many cases for a long time after their supposed separation, they are still in touch with the other and seek to amend the relationship.


Let us look at some of the principles the courts have applied to determine when couples actually separate and what it means to say when you are separated.


In the leading case of Oswell v. Oswell 1990 CanLII 6747 (ON SC), 74 O.R. (2d) 15 (Ont. H. C.) Justice Weiler (as she then was, now Weiler J.A.), listed the factors that a court may consider in determining whether a husband and wife are separated with no reasonable prospect that they will resume cohabitation. She stated the following:

Various indicia are set out in several cases … to assist a court in determining when spouses who occupy the same premises are living separate and apart.


(1) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms: Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart.


(2) There must also be 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.


(3) The absence of sexual relations is not conclusive but is a factor to be considered.


(4) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.


(5) Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.


(6) Under the Family Law Act, 1986, the court must have regard to the true intent of a spouse as opposed to a spouse's stated intent … An additional consideration to which the court may have regard in determining the true intent of a spouse as opposed to that spouse's stated intentions is the method in which the spouse has filed income tax returns … If a mediator is consulted, the purpose for which the mediator was consulted may also be of assistance.


(7) When a spouse makes plans for his or her assets as a separated person, the courts consider this to be indicative that there is no real prospect of resumption of cohabitation under the Family Law Act, 1986: "One reason for the postponement of the valuation date after separation until the date when there was no reasonable prospect of resumption of cohabitation would be that only on that latter date would each of the spouses make plans for their assets as a separated person”… (citations omitted).


In Torosantucci v. Torosantucci (1991), 32 R.F.L. (3d) 302 (Ont.U.F.C.) Justice Beckett stated the following:


A reasonable prospect of reconciliation must be more than wishful thinking on the part of either party. There must be more than residual affection that may linger by one or both of the parties. The Act does not speak of a "prospect" of reconciliation but a "reasonable prospect". The Oxford Concise Dictionary 7th Edition, defines prospect as "expectation, what one expects." The question is whether a reasonable person, knowing all of the circumstances, would reasonably believe that the parties had a prospect or expectation of resuming cohabitation. I do not doubt that Mr. and Mrs. Torosantucci wished that their marriage would have been otherwise than it was. I accept, on the part of Mr. Torosantucci, that he retained, and continues to retain, some degree of affection for her. But wishful thinking is not the stuff of reconciliation. There must be some indication or step taken by both of them in that direction. In this case, no attempt was made to mediate or reconcile their differences, no counselling from third parties was sought and most importantly no meaningful discussions ever took place between them as to if, how or when their marriage might be put back together.


Analysis:


The above points are useful indicia to guide clients on separation. It is next to impossible for couples to strategically plan their initial union based on the principles laid out above or what they should be doing in order to actually have a real separation. In reality, who really thinks that when they get together for union of being together, they have to keep in mind the principles such as the above in just a few years time when they may separate?


Nevertheless, when a couple actually separates, the above principles effectively come into play. That is the point when the past matters and an analysis follows as to each point in the above indicia to decide on the actual date of separation.


At Shankar Law, we are happy to assist and guide you through whatever challenges you have in your spousal life. We work in three counties: Huron, Bruce, and Grey and span several cities (Southampton, Kincardine, Goderich, Wiarton, Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in PortElgin and in OwenSound.

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