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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 08-26-2012, 05:04 PM
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Default Separation Date on Divorce Application

Hi everyone, this is my first post. I have viewed a number of the threads on here over the last 1.5 years as I've been going through my separation and now, divorce. I have a question regarding the date to put on the divorce application/affidavits. I'll try to keep this factual...

July 2006: Married.

Sept. 2011: Began trial separation after 10 months of counseling, etc. Ex moved out of our home and I remained there alone.

Nov. 2011: Ex moved back in to try reconcile. Didn't work. Decided that we would separate permanently effective Jan. 1, 2012, though she did not physically move out until Jan 23.

March 2012: Our home was sold and I moved. Proceeds paid off all debts and remaining cash retained in joint bank a/c pending future division.

June 2012: Separation agreement was prepared by lawyers, ILA obtained, and agreement signed. No property/support issues. To keep things simple for tax reasons (donation credits, refunds, taxes owed, etc.) the agreement was signed as of January 1, 2012.

So, to my question. Which date can I use on the application to the court? Our separation agreement states Jan. 1 2012, however, in reality it was Sept. 5 2011 when we first separated (with a trial reconciliation that was 2 mos long).

I'd like to use the earlier date so I can wrap up all this paperwork NOW rather than have this process drag on for an extra 4 mos. I am filing the paperwork myself to save legal costs, but my lawyer won't give me advice on the situation unless she handles the entire process... The only comment she made was that it's good to have common dates on agreements and applications, and I should avoid the optics of collusion.

Date on the agreement aside, the ACTUAL first separation date was Sept. 2011. Can I use that date for the court filing? The application for divorce asks for the initial separation date and any dates where reconciliation was attempted... I would think that would explain why the signed paper states Jan. 1...

Thanks in advance for any comments or help!

W
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Old 08-26-2012, 06:05 PM
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for all that you said, the family law acts allows you a few months (Three or four?) which a reconcilliation can be attempted without interupting the year seperation requirement. So the first date you lived seperate and apart either under the same roof or seperate residence - you wait the year starting sept 2011.

Lawyer statement I believe is you can't go back and forth, go to a different date (back to sept 2011 instead of the agreed jan 1 2012) when maybe there is "suddenly" there is a financial advantage to do so. So if you agreed between the two of you and you already began to indicate this date - lawyer I believe is saying do not change it. If you already have an agreement with your ex I also would not rock the boat - lawyer fees to argue the date can get expensive.
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Old 08-26-2012, 06:19 PM
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If one of you agrees to admit to adultery it can be immediate.

Welcome to the forum!
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Old 08-26-2012, 06:31 PM
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Quote:
Originally Posted by arabian View Post
If one of you agrees to admit to adultery it can be immediate.

Welcome to the forum!
I'm not a lawyer, but based on what I've been reading, THAT sounds like collusion! lol

I appreciate your comment ddol1. To me, it's not about choosing a date that's convenient at a certain time... That WAS the timeline. We went into the initial separation with the intent of reconciling, but it didn't work. So, there was no property division right away.

In a couple weeks she is going to start a Masters program and this will be the LAST thing on her mind, so I want to get this all done before she gets too busy (since we're filing jointly).

The divorce application form (8A) has a box that allows the applicants to detail "Important Facts Supporting Our Claim(s)". Could the details/timeline just be supplied there so there is no appearance of deception?

Thanks for the welcome arabian
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Old 08-26-2012, 06:34 PM
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Your welcome. I wasn't inferring that you falsify adultery, just that if it was an issue of your break-up you can request an immediate divorce. Same goes for mental/physical cruelty.
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Old 08-27-2012, 12:22 PM
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Quote:
Originally Posted by WDB View Post
Sept. 2011: Began trial separation after 10 months of counseling, etc. Ex moved out of our home and I remained there alone.
WDB, there is no legal concept of a "trial separation" in Canada. We have a no-fault divorce structure and separation begins when one of the party to the marriage states that they want to separate.

There is a major miss conception that there is some legal concept of a "trial separation". For the purposes the date for which the other party stated they wanted a separation would be the valuation date on application.

Quote:
Originally Posted by WDB View Post
Nov. 2011: Ex moved back in to try reconcile. Didn't work. Decided that we would separate permanently effective Jan. 1, 2012, though she did not physically move out until Jan 23.
There are complex issues with determining the valuation date of the matters when you leave the relationship. An attempt to reconcile could reset the date of separation and it appears that it is January 1, 2012.

The courts have no real interest in your past attempts to "reconcile" in the matters unless there is a dispute with regards to the separation date between the two parties. I highly recommend you agree to a date on which you began living "separate and apart" from the other person. I would recommend January 1, 2012 based on what you have disclosed be the agreed upon date of separation.

Quote:
Originally Posted by WDB View Post
March 2012: Our home was sold and I moved. Proceeds paid off all debts and remaining cash retained in joint bank a/c pending future division.
The division would be 50-50 between the two parties. Are there other matters in dispute (RRSP/pensions) for the money to be held back?

Quote:
Originally Posted by WDB View Post
June 2012: Separation agreement was prepared by lawyers, ILA obtained, and agreement signed. No property/support issues. To keep things simple for tax reasons (donation credits, refunds, taxes owed, etc.) the agreement was signed as of January 1, 2012.
Your date of separation is January 1, 2012, the agreement should have been signed in June no? The date of the agreement should be the date it was made not the date of the separation. If you both have ILA then your lawyers should have notified you both to the conduct issues with back-dating an agreement for which no agreement existed on that date. I find it odd that lawyers would not advise you of such improper back-dating to avoid taxing issues.

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Originally Posted by WDB View Post
So, to my question. Which date can I use on the application to the court? Our separation agreement states Jan. 1 2012, however, in reality it was Sept. 5 2011 when we first separated (with a trial reconciliation that was 2 mos long).
It all depends on evidence you present and really, what value does bickering over the date of separation matter?

Quote:
Originally Posted by WDB View Post
I'd like to use the earlier date so I can wrap up all this paperwork NOW rather than have this process drag on for an extra 4 mos. I am filing the paperwork myself to save legal costs, but my lawyer won't give me advice on the situation unless she handles the entire process... The only comment she made was that it's good to have common dates on agreements and applications, and I should avoid the optics of collusion.
Very sage advice and in light of my questions and observations I would really advise you to listen to what your lawyer is advising. You cannot back-date agreements.

Quote:
Originally Posted by WDB View Post
Date on the agreement aside, the ACTUAL first separation date was Sept. 2011. Can I use that date for the court filing? The application for divorce asks for the initial separation date and any dates where reconciliation was attempted... I would think that would explain why the signed paper states Jan. 1...
Why bother though is the real question? The date of separation only really matters when considering valuation of net family property. Very little churns on the date of separation unless you want to nit-pick over a the money between Sept 2011 to January 1, 2012. I can tell you a judge will not be impressed unless there is some number well over 50,000 in consideration of the valuation date. Fighting in court over anything less only demonstrates (in my opinion) someone's inability to fully understand the concept of costs and is only demonstrating potentially a "penny wise - pound foolish" attitude and may be seeking nothing more than "vengeance" and "justice" before the court.

Add up your lawyers costs and the other party to the matters costs... If it is more than 1/2 the value of any property between Sept 2011 and Jan 1, 2012 a judge will seriously question your value judgements on using the public courts to resolve the matter. If the costs are more than the money being sought... No doubt the judge will call out your judgement to do so in the courts loudly and for all in the court room to hear.
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Old 08-27-2012, 03:23 PM
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Thanks Tayken. My question has nothing to do with money - just shortening the timeline to complete the divorce.

The agreement wasn't backdated - January was just the separated 'as of' date. The date the agreement was signed is June 27. I just wanted to use the Sept. 2011 date as the first date of separation on the divorce application, then view the period in Nov/Dec as an attempt to reconcile that was < 3 mos. But it sounds like that's not advisable and may just create unnecessary confusion.

As for the money held back post-house sale, it was used to pay for our joint legal expenses in the preparation of the separation agreement, then the remaining balance was divided equally. RRSPs were easily divisible - no Defined Benefit pensions or anything that required an actuary, etc.

I don't want to nit-pick over money at all, I just want to get this done. I am asking the question because it could mean that I can file everything NOW instead of just the application now and waiting for January to get the affidavits done and filed, then waiting for a judgement after that... I just hate having this hang over me for longer than it needs to.

But, it sounds like I'll just have to live with it and I'll have to be ok with that. If I have to. I guess.
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Old 08-27-2012, 05:34 PM
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Quote:
Originally Posted by WDB View Post
Thanks Tayken. My question has nothing to do with money - just shortening the timeline to complete the divorce.
I recommend you don't try to accelerate the date. What is 3 months in the grand scheme of your life?

The date isn't relevant enough and you have a written agreement with the agreed upon dates that has to be attached to the divorce application.

Quote:
Originally Posted by WDB View Post
The agreement wasn't backdated - January was just the separated 'as of' date. The date the agreement was signed is June 27. I just wanted to use the Sept. 2011 date as the first date of separation on the divorce application, then view the period in Nov/Dec as an attempt to reconcile that was < 3 mos. But it sounds like that's not advisable and may just create unnecessary confusion.
And opens up the other party to contest the application and re-open all the issues before the court. A judge will seriously question the judgement of trying to accelerate a divorce by 3 months? Do you have a wedding planned to a new person? If so you can ask that a divorce be served but, wouldn't waiting the 3 additional months just be cheaper?

Quote:
Originally Posted by WDB View Post
As for the money held back post-house sale, it was used to pay for our joint legal expenses in the preparation of the separation agreement, then the remaining balance was divided equally. RRSPs were easily divisible - no Defined Benefit pensions or anything that required an actuary, etc.
Now that the agreement is done the money should be split and matters should be closed.

Quote:
Originally Posted by WDB View Post
I don't want to nit-pick over money at all, I just want to get this done. I am asking the question because it could mean that I can file everything NOW instead of just the application now and waiting for January to get the affidavits done and filed, then waiting for a judgement after that...
The only reason you need a "divorce" is to get re-married mostly. So unless you have a wedding planned I wouldn't advise you to "push the system" because it "pushes back very hard" at times.

Quote:
Originally Posted by WDB View Post
I just hate having this hang over me for longer than it needs to.

But, it sounds like I'll just have to live with it and I'll have to be ok with that. If I have to. I guess.
Patience is a virtue and all good things come to patient people.
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