“In Greaves v. Greaves, 2004 CanLII 25489 (SCJ), Mesbur, J. was guided by the criteria defined by Weiler, J. (as she then was) in Oswell v. Oswell (1990), 74 O.R. (2nd) (15) (H.C.J.), affirmed at (1992), 12 O. R. (3rd) (95) (Ont. C. A.) to determine the date of separation. Mesbur, J. framed this criteria in paragraph 34 of Greaves as follows:
34. It is true that every marriage is different. Parties can live apart under the same roof, and can still cohabit even if they live in separate locations. The court must look at various objective factors to determine if the parties are living apart or not. Oswell v. Oswell[5] perhaps best sets out the criteria for the court to consider. These include the following:
(a) there must be a physical separation… 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;
(b) there must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;
(c) the absence of sexual relations is not conclusive but is a factor to be considered;
(d) 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.
(e) Although the performance of household tasks is also a factor…weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.
(f) The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent… [a]n additional consideration…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.
In Greaves, Mesbur, J. did not find the presence or occurrence of a consistent sexual relationship to be determinative when she explained that:
37. I accept the evidence of Mr. Greaves’ witnesses confirming the objective perception that this couple was separated. They did not socialize as a couple. They did not routinely eat together as a family. They did not attend the same church. Although they had a consistent sexual relationship, I cannot find this determinative, any more than the absence of a sexual relationship would be.
Heeney, J. in Tokaji v. Tokaji, [2016] O.J. No. 6547 relied on the quotation above taken from Greaves when called upon to consider several aspects of the lives of the parties to determine if their cohabitation was continual. He considered the absence or presence of ongoing sexual relations to be indicative but not conclusive. He also considered all aspects of their life with respect to purchasing a home an moving in together and expressions of intent to make the marriage work. Heeney J. concluded that there remained a “reasonable prospect of presumption of cohabitation” until the husband in that case announced that he would not participate in marriage counselling. Heeney, J. based his finding that the parties had finally separated upon the happening of that event.”