“The identification of the valuation date involves the determination of two issues. First, the court must decide when the parties separated. Second, it must determine the point at which there was no reasonable prospect that the parties would resume “cohabitation.” As previously indicated, at the first stage of the analysis, the principles and factors relevant to deciding whether parties are separate and apart or cohabiting in a conjugal relationship for the purposes of divorce entitlement and spousal support apply likewise to the inquiry as to when the parties separated for valuation date purposes (see also Rosseter, at para. 9; Tokaji, at para. 3). With respect to the second stage, as indicated above, s. 1(1) of the Family Law Act provides that “cohabit” means to live together in a conjugal relationship, whether within or outside marriage. Accordingly, at the second phase of the analysis, the task is to determine the point at which there was no reasonable prospect that the parties would resume living together in a conjugal relationship. The notion of “reasonableness” is at the heart of this analysis. Half-hearted suggestions or discussions about possible reconciliation will not necessarily move the valuation date forward in the absence of sincere action by the parties to put their relationship back on track (Strobele, at para. 32). As Beckett J. stated in Torosantucci, a reasonable prospect of resumption of cohabitation “must be more than wishful thinking on the part of either party. There must be more than residual affection that may linger by one or both of the parties. The Act does not speak of a “prospect” of reconciliation but a “reasonable prospect.” He added that in order to find that there is a reasonable prospect of resumed cohabitation, “there must be some indication or step taken by both of them in that direction” (see also Rosseter, at paras. 57-58; Tesfatsion, at para. 56). A sincere desire on the part of one party to resume cohabitation and efforts by that party to advance this objective will not generate a reasonable prospect of resumed cohabitation if the other party has no mutual interest in exploring this possibility. In the words of Corbett J. in Strobele, at para. 32, “groundless hopes of reconciliation should not extend the valuation date where one spouse has been clear in his or her intentions to end the relationship” (see also O’Brien, at para. 50).
The outcome of the second stage of the analysis may in some cases move the valuation date to a point later in time than the separation date for the purposes of divorce entitlement and spousal support. As Whitten J. commented in Taylor v. Taylor, 1999 CarswellOnt 4653 (S.C.J.), at para. 9, it is possible that parties could be truly separated, but nonetheless both entertain a reasonable prospect that they may resume cohabitation at some ill-defined time in the future. Whitten J. noted that in such circumstances, “[t]o seize upon the fact of separation without respect for the intention of the parties would discourage those who seek to contemplate the future of a relationship, outside the pressures of cohabitation” (see also Tesfatsion, at para. 45).
In Czepa, at para 15, the court described the quest for the valuation date in general terms as being “tied to that date when the marriage is irretrievably broken down and the resumption of cohabitation is not reasonably in the cards” (see also Shah v. Shah, 2018 ONSC 5784 (CanLII) (S.C.J.), at para. 77). Determining the point at which there was no reasonable prospect of resumed cohabitation requires the court to carefully consider and weigh all of the relevant factors objectively. In this regard, Scott J. commented as follows in Hogarth v. Hogarth, 2018 ONSC 3580 (CanLII) (S.C.J.), at para. 9:
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.
The various factors outlined above relating to cohabitation and the separation date are relevant to whether there was a reasonable prospect that the parties would resume cohabitation, but they are not determinative (Rosseter, at para. 53). However, the evidence respecting the manner in which the parties managed their financial affairs post-separation may be particularly relevant to the determination of the valuation date. When one or both of the spouses make plans for their assets and general finances as separated persons, the courts often consider this to be strongly indicative that there is no real prospect of resumed cohabitation (Oswell, at para. 19).”