“The court in Oswell v. Oswell, 1990 CanLII 6747 (ON SC), [1990] O.J. No. 1117 (Ont. H.C.), aff’d [1992] O.J. No. 3563 (Ont. C.A.), set out principles to consider when the date of separation is disputed (paras. 6-8):
(1) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms: Dupere v. Dupere (1974), 19 R.F.L. 270, 9 N.B.R. (2d) 554 (S.C.); Cooper v. Cooper (1972), 10 R.F.L. 184 (Ont. H.C.). Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart: Dupere.
(2) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium (Dupere) or of repudiating the marital relationship: Mayberry v. Mayberry, 1971 CanLII 717 (ON CA), [1971] 2 O.R. 378, 3 R.F.L. 395, 18 D.L.R. (3d) 45 (C.A.).
(3) The absence of sexual relations is not conclusive but is a factor to be considered: Dupere; Cooper; Mayberry.
(4) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern: Cooper; Mayberry; McKenna v. McKenna (1974), 19 R.F.L. 357, 10 N.S.R. (2d) 268 (C.A.); Vogel v. Vogel (1988), 18 R.F.L. (3d) 445 (Ont. H.C.).
(5) Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above: McKenna.
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- Under the Family Law Act, the court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent: Czepa v. Czepa(1988), 16 R.F.L. (3d) 191 (Ont. H.C.); Vogel v. Vogel; Caratun v. Caratun (1987), 1987 CanLII 4094 (ON SC), 61 O.R. (2d) 359, 9 R.F.L. (3d) 337, 28 E.T.R. 59, 43 D.L.R. (4th) 398 (H.C.). An additional consideration to which the court may have regard in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns: Czepa. If a mediator is consulted, the purpose for which the mediator was consulted may also be of assistance: Garnick v. Garnick, [1988] W.D.F.L. 150 (Ont. H.C.).
- When a spouse makes plans for his or her assets as a separated person the courts consider this to be indicative that there is no real prospect of resumption of cohabitation under the Family Law Act. “One reason for the postponement of the valuation date after separation until the date when there was no reasonable prospect of resumption of cohabitation would be that only on that latter date would each of the spouses make plans for their assets as a separated person”: Caratunat p. 364….”
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