June 21, 2022 – Determining the Separation Date

“Ascertaining when spouses begin to live separate and apart requires a careful analysis of the unique realities of their relationship, routines, social and other habits and practices and living arrangements over time.   In deciding how much weight, if any, to give to any particular factor, the court must carefully assess whether there have been any real changes in regard to that factor since the parties were clearly together in a conjugal relationship.  In addition, because of the particular dynamics of each relationship, no one factor will be determinative of whether spouses are living separate and apart; a global analysis and weighing of all factors is required.  Subject to these caveats, the relevant principles and considerations that emerge from the case-law can be summarized as follows:

1. 1. 1. 1. 1. There are two aspects to spouses living separate and apart.  First, they must live apart from each other, and second, there must be an intention on the part of one or both of them to live separate and apart from the other (Oswell; Greaves).
            2. To live “apart” requires a physical separation between the parties (Oswell, at para. 13).   This means that the parties cannot be cohabiting in a conjugal relationship (Greaves).  However, the fact that they continue to reside in the same home together does not necessarily mean that they are not living apart.   Spouses can be living separate and apart under the same roof.  The determination of whether parties who reside in the same home are living separate and apart involves a consideration of all relevant factors, including whether they are occupying separate bedrooms and/or areas of the home and any stated reasons for remaining in the same residence (Oswell, at para. 12; Greaves, at para. 34; Neufeld, at para. 6; S.(K.L.) v. S.(D.R.), 2012 NBCA 16 (CanLII)(C.A.), at para. 20).
            3. By the same token, the fact that the spouses have two residences and spend significant periods apart in the two homes is not determinative of whether they are living separate and apart.   As the Ontario Court of Appeal stated in Lachman v. Lachman, 1970 CarswellOnt 122 (C.A.), at para. 12, spouses in these circumstances will only be considered to be living separate and apart if at least one of them intends to end the marital relationship. Where the parties live primarily in separate residences, the court must examine all of the other circumstances surrounding their relationship to determine whether they were, in fact, living separate and apart.  The reasons for maintaining separate residences will be one important consideration (Rosseter v. Rosseter, 2013 CarswellOnt 2013 (S.C.J.), at para. 14).   Another circumstance which may be relevant in this situation is whether the parties have kept personal items at each other’s residences (Rosseter). The implications of maintaining more than one residence are discussed in greater detail below in the discussion about “cohabitation.”
            4. In order to establish the requisite intent to live separate and apart, there must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the matrimonial relationship (Oswell,at para. 14; Greaves, at para. 34).  The term “consortium” does not have a precise or complete definition, but refers broadly to the companionship, love, affection, comfort, mutual services and support, and sexual relations typically involved in the marital relationship (Kungl v. Schiefer, 1960 CanLII 22 (ON CA), [1961] O.R. 1, (C.A.), at para. 11; Molodowich v. Penttinen, 1980 CarswellOnt 274 (Dist. Ct.), at para. 16).
            5. The law does not require a meeting of the minds regarding the intention to separate; a physical separation, coupled with the intention of one party to live separate and apart, is sufficient (Strobele v. Strobele, 2005 CarswellOnt 9201 (S.C.J.), at para. 30; S.(H.S.) v. D.(S.H.), 2016 CarswellBC 1975 (S.C.), at para. 40); Nearing v. Sauer, 2015 BCSC 58 (CanLII)(S.C.), at para. 54).   As McDermot J. stated in O’Brien v. O’Brien, 2013 ONSC 5750 (CanLII) (S.C.J.), at para. 50:

Unlike the decision to marry, the decision to separate is not a mutual one.  It is a decision which is often made by one party over the objections of the other.  Those protestations matter not; once one party has decided to permanently separate and has acted on it, the other party has no ability to stop the process or object to it.

1. 1. 1. 1. 6. A clear statement or unequivocal act by one of the parties of their desire to terminate the relationship will be very relevant to the determination of whether parties are living separate and apart (O’Brien, at para. 52; S.A.H. v. I.B.L., 2018 BCSC 544 (CanLII)(S.C.), at para. 17).  However, the intention to separate need not be unambiguously relayed to the other spouse by way of a verbal expression of settled intention.  In the context of both common law relationships and married couples, the courts have held that a relationship has come to an end when either party regards it as being at an end, and that party by their conduct has demonstrated in a convincing manner that their state of mind on this issue is a settled one (Sanderson v. Russell (1979), 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429 (C.A.), at para. 432;  Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 (S.C.C.) (CanLII), at para. 42;  S.(H.S.), v. D.(S.H.), at para. 43;  Naegels v. Robillard, 2019 ONSC 2662 (CanLII) (S.C.J.), at para. 37).
            7. In assessing whether there is an intention on the part of one or both parties to live separate and apart from the other, the court must strive to determine their true intent and not simply their stated intent at the time of hearing (Oswell, at para. 18; Greaves, at para. 34; R.(T.) v. K.(A.), 2015 ONSC 7272 (CanLII)(S.C.J), at para. 47).
            8. A party’s intention to live separate and apart will not necessarily be broken by brief references by that party to the possibility of reconciliation where no serious steps were taken to move towards such a goal (Nearing, at para. 59).
            9. The degree to which the parties were intimate with each other is a relevant consideration (Oswell, at para. 15; Rosseter, at para. 38; Anthony v. Anthony, 2019 ONSC 650 (CanLII)(S.C.J.), at para. 42).  However, the absence of sexual relations is not a conclusive indicator that the parties are living separate and apart (Newman v. Newman, 1970 CarswellOnt 123 (C.A.); Cooper v. Cooper (1972), 10 R.F.L. 184 (Ont. H.C.); Oswell, at para. 15). Similarly, the fact that the parties have engaged in sexual relations is not determinative of whether they remain separate and apart or have reconciled.  Parties who are generally living separate lives in separate homes may be found to be living separate and apart despite occasional incidents of sexual intimacy and discussions of reconciliation (Greaves, at para. 36;  S.(K.L.), at para. 23;  Wells. v. King, 2015 NSSC 232 (CanLII) (S.C.), at para. 23).   However, the presence of sexual relations while the parties are still physically living with each other will be a strong indicator that they continue to cohabit in a conjugal relationship (Tokaji v. Tokaji, 2016 ONSC 7993 (CanLII) (S.C.J.), at para. 26).
            10. Whether the parties have been involved romantically with other people (Rosseter, at para. 39).  However, the fact that they have had relationships with other people is not determinative either, particularly if the other party was unaware of the other relations (Neufeld, at para. 75).
            11. Whether the parties have continued to discuss family issues and problems and communicate about daily issues (Greaves, at para. 34; Cooper, at para. 12; Oswell, at para. 16).
            12. Have there have been any changes in expectations regarding their accountability to each other for daily activities? (Oswell, at para. 37).
            13. The extent and nature of their contact with each other, including whether they have continued to participate in joint social activities (Cooper at para. 15; Oswell, at para. 16; Greaves, at para. 34; Torosantucci;  Rosseter, at para. 26;  Anthony, at para. 42).  In assessing any contacts, the court should consider whether the events were evidence of an ongoing relationship or reconciliation or simply “rare moments of friendliness or civility” (Torosantucci; Daley v. Gowan, 2015 ONSC 6741 (CanLII)(S.C.J.), at para. 66).
            14. Whether the parties spent vacations together (Oswell, at para. 26; Rosseter, at para. 34; Henderson v. Casson, 2014 ONSC 720 (CanLII)(S.C.J); Neufeld, at para. 75; Anthony, at para. 42).
            15. Attendances by both parties with their children for family events, activities and even family vacations is relevant but not determinative, as these may simply reflect the parties’ efforts to co-parent in the best interests of the children post-separation (Volcko v. Volcko, 2015 NSCA 11 (CanLII), at para. 10-11;  Neufeld, at para. 75(j)).
            16. Have the parties continued to share and participate in each other’s daily routines as in the past, such as eating meals together and sharing household chores? (Cooper, at paras. 13 and 14; Oswell, at paras. 16 and 17; Rosseter, at para. 20; Henderson; Anthony, at para. 42).
            17. Whether they have celebrated special occasions together (Oswell, at para. 37; Rosseter, at para. 29)
            18. Whether they have purchased gifts or exchanged other tokens of affection with each other (Oswell, at para. 29; Rosseter, at para. 29; Neufeld, at para. 75).
            19. Whether they have supported each other with respect to extended family obligations, through difficult times and with each other’s personal issues (Rosseter, at para. 31; Henderson v. Casson, 2014 ONSC 720 (CanLII)(S.C.J)).
            20. How the parties referred to each other and held out their relationship to third parties (Anthony, at para. 42; R.(T.) v. K.(A.), at para. 46).
            21. Documentary evidence respecting their relationship status is also relevant. For example, the manner in which the parties described their status in important documents, including Income Tax Returns, and whether they have claimed any benefits that are conditional on their relationship status are important considerations (Czepa v. Czepa (1988), 16 R.F.L. (3d) 191 (Ont. H.C.J.), at para. 13; Oswell, at para. 18; Greaves, at para. 34;  Joanis v. Bourque, 2016 ONSC 6505 (CanLII)(S.C.J.), at para 25;  Rosseter, at para. 47; Henderson, at para. 35;  Tokaji, at para. 25).  Once again, however, these considerations are not determinative, and the court should consider any explanations which either party may proffer before determining the weight, if any, to accord to them (Morin v. Morin, 2011 ONSC 1727 (CanLII) (S.C.J.), at para. 27; Anthony, at para. 42).
            22. If the parties have retained a counsellor or mediator, the purpose for which the mediator was consulted may also be of assistance in determining whether the parties have separated (Oswell, at para. 28).
            23. Whether there have been any changes in the way the parties manage their financial affairs, including whether they have taken steps to separate their financial dealings (Newton v. Newton, 1995 CarswellOnt 84 (S.C.J.);  Rosseter, at para. 41; Tokaji, at para. 24; Anthony, at para. 42).
            24. Have the parties continued to share the use of assets? (Rosseter, at para. 43).
            25. The parties’ behaviour towards each other in the presence of third parties (Rosseter, at para. 44).
            26. Whether the parties have taken legal steps to legally terminate their relationship and resolve issues relating to their separation (Oswell, at para. 35; Tesfatsion v. Berhane, 2013 CarswellOnt 213 (S.C.J.), at para. 53;  Rosseter, at para. 49).  However, this factor is not determinative and may be given little weight if no further steps were taken and other factors point to a continuation of their involvement with each other as a couple (Rosseter, at paras. 49-51).”

Al-Sajee v Tawfic, 2019 ONSC 3857 (CanLII) at 26