February 19, 2026 – Determining the Date of Separation

The relevant sections of the Divorce Act are ss. 8(1)-8(3) and 15.2(4)(a). These sections deal with the concept of living “separate and apart” in the context of a claim for support, and the “length of time the parties cohabited” in the context of spousal support.

The relevant section of the FLA is s. 4(1) which, in the context of family property, defines “valuation date” as the earliest of five possible dates. In this case, subsection 1 of 4(1) applies, referring to the date the spouses separated and there was no reasonable prospect that they would resume cohabitation.

As stated by the court in Al-Sajee v. Tawfic, 2019 ONSC 3857, at para. 26, ascertaining when parties begin to live separate and apart requires a careful analysis of the unique realities of their relationship, routines, social and other habits, 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.

In Al-Sajee, the court set out various factors to consider. They are summarized as follows:

1. 1. 1. 1. 1.    To be living separate and apart requires: i) the parties live apart from each other, and ii) there must be an intention on the part of one or both of them to live separate and apart from the other.
            2.    To live “apart” requires a physical separation of the parties. However, they 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 listed.
            3.    Two residences and significant periods apart in the two residences is not determinative. Parties 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.
            4.    Whether there is a withdrawal by one or both parties from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the matrimonial relationship.
            5.    A meeting of the minds is not required. A physical separation, coupled with the intention of one party to live separate and apart, is sufficient.
            6.    A clear statement or unequivocal act by one of the parties of their desire to terminate the relationship will be very relevant.
            7.    In assessing “intention”, the court must strive to determine the parties’ true intent and not simply their stated intent at the time of hearing.
            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.
            9.    The degree to which the parties have been intimate with each other.
            10. Whether the parties have been involved romantically with other people.
            11. Whether the parties have continued to discuss family issues and problems and communicate about daily issues.
            12. Whether there have been any changes in expectations regarding their accountability to each other for daily activities.
            13. The extent and nature of the parties’ contact with each other, including whether they have continued to participate in joint social activities. 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”.
            14. Whether the parties have attended with their children for family events.
            15. Whether the parties have continued to share and participate in each other’s daily routines as in the past, such as eating meals together and sharing household chores.
            16. Whether the parties have celebrated special occasions together and/or vacationed together.
            17. Whether the parties have purchased gifts or exchanged other tokens of affection with each other.
            18. Whether the parties have supported each other with respect to extended family obligations, through difficult times and with each other’s personal issues.
            19. How the parties have referred to each other to third parties.
            20. Documentary evidence respecting their relationship status is also relevant (i.e. Income Tax Returns) as is the receipt of any benefits claimed that are conditional on their relationship status.
            21. Whether the parties have retained or consulted a counsellor or mediator.
            22. 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.
            23. Whether the parties have continued to share the use of assets.
            24. The parties’ behaviour towards each other in the presence of third parties.
            25. Whether the parties have taken steps to legally terminate their relationship and resolve issues relating to their separation.”

Kim v. Lee, 2025 ONSC 1101 (CanLII) at 5-8