What is the Date of Separation?
Simply put, the date of separation is the date on which a married or common-law relationship ends. Legally, and for family law purposes, it is the date as of which a couple begins living “separate and apart” from one another. The definition of living “separate and apart” can differ, depending on the purpose for which the date is required.
For example, for income tax purposes Canada Revenue Agency has more stringent and specific requirements to satisfy the definition of “separate and apart”. For the purposes of dividing family property, support obligations, and for obtaining a divorce judgment, “separate and apart” is a date either agreed to by the parties or determined by the Court on consideration of a number of factors.
In the context of family property, the date of separation can sometimes also be referred to as the “valuation date” of family assets and liabilities.
Why Does the Date of Separation Matter?
The date of separation can have an impact on a number of issues that come up on the breakdown of a relationship.
Most notably, the date of separation can determine the earliest time at which a divorce can be ordered by the Court. The most common and practical ground for a divorce is parties living separate and apart for a period of one year.
This does not mean that parties must wait a year to commence proceedings or reach an agreement relative to any number of issues arising on the breakdown of the relationship. Quite commonly, agreements are negotiated, or court proceedings are advanced prior to reaching the one-year mark.
The date of separation is particularly significant in matters of family property. It is sometimes referred to as the valuation date, the date on which a person’s assets (i.e. vehicles, pensions, investments in their name alone, acquired during the relationship) and debts are valued and accounted for.
Each spouse, or common-law partner, is accountable to the other for the net value of family property held in his or her name on the date of separation. Where one party has more than the other, an equalization payment can be owing to achieve an equal division of value.
Finally, the date of separation can have relevance to issues of support. In some cases, retroactive support (child or spousal) can be sought, and it may be appropriate that support be back-dated to the date of separation.
How is the Date of Separation Determined?
In some cases, the date of separation can be quite obvious, and parties will simply agree on the date that is appropriate.
Where parties are unable to agree on the date of separation, the Court may need to make a determination. In other words, the Court can make an order by which the date of separation is determined. This may be the date alleged by either party or possibly another date altogether. Some factors that will be considered by the Court in making such a determination include:
- What are the parties’ living and sleeping accommodations?
- Are parties living physically together?
- Are others residing with the parties?
- Sexual and Personal Behaviour
- Are there sexual relations?
- Is there an attitude of fidelity?
- Do the parties eat together, assist one another?
- Do the parties prepare meals together?
- Do they complete household tasks together?
- Do the parties participate together in community events?
- What are the parties’ relationships with each other’s family members?
- What was the attitude of the community towards the parties, individually and as a couple?
- What were the financial arrangements between the parties?
- What were the arrangements relative to acquiring and owning property?
- What was the attitude of the parties as it relates to the children of the relationship?
When a person may not be sure of the date of separation, the foregoing factors can be assessed and considered. It is important to note that the relevance of all of the above will vary from case to case and will be dependant on the unique circumstances of the parties.
If you are unsure of how the date of separation can impact the separation of your affairs, or what the date of separation is in your case, speaking to a family law lawyer can be helpful and the logical next step.
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