“The case law is abundantly clear that in determining a valuation date, “no one factor is necessarily determinative of the issue of when the parties are separated.”: Neufeld v. Neufeld, 2019 ONSC 1277 at 74.
The case of Oswell v. Oswell, 1990 CanLII 6747 (ON SC), 1990 CarswellOnt 278, provides guidance in assisting parties to determine a date of separation. The Court noted as follows:
In deciding whether spouses are living separate and apart under the same roof, the court must decide when the parties ceased living as a “couple” and began to live separate lives. The following factors should be considered: there must be a physical separation; one or both spouses must withdraw from the matrimonial obligation with the intent of destroying the matrimonial consortium; the absence of sexual relations is not conclusive but is a factor to be considered; and the level of communication between the spouses must also be considered. The parties led an active social life together and did not claim to be separated on their tax returns. Based on the evidence, the parties did not live separate and apart with no real prospect of reconciliation until January 1988. As a result, January 1988 was the valuation date under the Family Law Act.
I adopt the Court’s position in Oswell with respect to the important factors in assisting in the determination of the date of separation, which in the case at bar I find is April 2014.
In the case of Dai v. Ding, 2019 ONSC 6118, at para. 38, the court noted as follows:
Much of this case turns on credibility as the parties’ versions of various important fact scenarios are completely polarized. A judge has the overriding authority to determine credibility upon weighing all the factors. Considerable weight is placed on the extent to which the testimony is consistent with other, undisputed and proven facts in the case, but no one factor is determinative. Assessment of credibility is not a scientific process and involves a consideration of many relevant factors.
Paragraph 212 of Dai makes reference to the factors in Oswell which is the leading case with respect to factors to be considered in determining the date of separation. In para. 212 the court noted as follows:
Oswell v. Oswell (1990), 1990 CanLII 6747 (ON SC), 74 O.R. (2d) 15 (Ont. H.C.), remains the leading case with respect to the factors to be considered in determining the date of separation where spouses continue to occupy the same premises. In summary, the factors are as follows:
1. There must be physical separation.
2. There must be withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium.
3. The absence of sexual relations is not conclusive but a factors to be considered.
4. Other matters to be considered are the discussion of family problems and communication between the spouses, presence of absence of joint social activities, and the meal pattern
5. Although the performance of household tasks is also a factor, help may be hired and for these tasks and greater weight should be given to those matters that are peculiar to the husband and wife relationship outlined above.”