“Whether the parties were living separate and apart during the disputed years is a question of fact. In Oswell v. Oswell (1990), 1990 CanLII 6747 (ON SC), 74 O.R. (2d) 15 (Ont. H.C.), Weiler J. (as she then was) reviewed the criteria a court should consider in determining whether spouses living under the same roof are living separate and apart:
1) There must be a physical separation (which might include occupying separate bedrooms). Spouses may still be considered as living separate and apart if they remain in the same house for reasons of economic necessity;
2) There must be a withdrawal by at least one spouse from the matrimonial obligation with the intent of destroying the matrimonial consortium;
3) The absence of sexual relations is relevant but not conclusive;
4) Additional factors that may also be considered include:
a. The discussion of family issues and communication between the spouses;
b. The presence or absence of joint social activities;
c. The meal pattern;
d. The performance of household tasks; and
e. The manner in which income tax returns are filed.
The true intent of the respective spouses must be regarded over their stated intent in considering the above factors.”