“While in most situations there is an obvious physical separation of the parties, case law has recognized that it is possible for parties to be living apart with no reasonable prospect of resuming cohabitation even while maintaining the same address. The court must look at the specific facts related to each situation as the determination of the valuation date is fact driven. The court must draw conclusions concerning the intentions of the parties with respect to their relationship. Intentions by necessity will be decided by a review of both the statements and actions of the parties and an analysis of the consistency of one with the other.
Both counsel have directed the Court to Oswell v. Oswell, 1990 CanLII 6747 (ON SC), [1990] O.J. No. 1117, affirmed at [1992] O.J. No. 3563. This case provides a list of indicia for the Court to consider when determining a valuation date, a list that has been used in many cases since. While it is appropriate as a starting point to look at the indicia indicated in that case, it must be remembered that the final determination will be based on the specifics of the case being considered. This approach recognizes that what is acceptable for one family unit may be quite different for another.
The list set out in Oswell, provides the following considerations for the Court to take into account:
1. Is there a physical separation?
2. Has one (or both of the spouses) taken steps to demonstrate his or her intent to destroy the matrimonial consortium?
3. Is there an absence of sexual relations that should be factored in?
4. What is the level of discussion of family problems and communication between the parties? Are there joint social activities? What is the meal pattern?
5. Are household tasks being performed?
Additional indicia may be found in other cases as well. For example, do the family finances reflect separated persons (Newton v. Newton, [1995] O.J. No. 519) and how are the parties presenting themselves to others, including to the CRA?
The court must always be vigilant of the significance of the valuation date and guard against any party attempting to manipulate the facts in order to protect their own interests, whether that be to include or exclude any equalization claim.”