When it comes to divorce, the date of separation, known as the valuation date in Ontario, is an important date to determine. First, it starts the clock running on the one-year period for which you need to be separated to get a divorce. Second, your property is valued on that day, which will determine how your property is divided.
Often, it is quite clear when the separation occurs – there is an abrupt event that ends the marriage. For instance, one spouse may leave the home, or one spouse may move to a different bedroom. However, often a marriage gradually deteriorates over time, and it is not very clear when the marriage ended. The determination of the exact valuation date may make a significant difference in how property is divided in your divorce.
How is the exact date of separation determined? In family law terms, the valuation date> is the day that the parties separated without any reasonable prospect that they would resume cohabitation. A reasonable prospect must be more than just wishful thinking. As well, “rare moments of friendliness or civility,” such as a separated couple going out to dinner together, do not mean that the spouses are not separated.
When deciding what the valuation date is, a divorce court will look at all the facts of your and your divorcing spouse’s relationship. No one fact is determinative.
The leading case on determining the date of separation is the case of Oswell v Oswell. The court in the case stated that the valuation date is determined by looking at a divorcing spouse’s true intent, rather than the spouse’s stated intent. Factors that must be examined are:
- physical separation (for instance, living in separate bedrooms)
- absence of sexual relations
- discussion of family problems
- communication between the spouses
- joint social activities
- meal pattern
- performance of household tasks
- method in which spouses filed income tax returns
- when a spouse makes plans for his assets as a separated person
- communications about separation
- consultation with a lawyer
- joint vacations
- gifts between spouses
- joint activities at home together (TV watching, tea in bed, etc.)
- visiting each other’s relatives
Other cases have provided other factors to examine in determining the date of separation. These factors are:
- appearance to outside world
- gifts and cards sent in joint names
- change of beneficiaries on insurance plans, RRSPs, etc.
- purchase of property without consulting the other spouse
- changing will
- communication of marriage breakdown to others
- corroborating evidence of third parties
- interest by spouse in trying to make the marriage work
- collaboration on renovations to home
- major arguments
- unsigned previous separation agreements
- religious beliefs about initiating separation or divorce
- one divorcing spouse telling the other that she did not love him or want to have anything to do with him
- celebration of holidays and important events (weddings, anniversaries, funerals) together