“Identifying the valuation date involves the determination of two issues: the date when the parties separated and the point in time when, as noted in s. 5(1) of the legislation, “there is no reasonable prospect that [the spouses] will resume cohabitation”. Most often these two events are the same but where a dispute about the choice of a valuation date arises it is invariably financially driven due to the consequences of the date selected. In cases where, as in this case, the parties continued to reside under the same roof after an alleged separation event and there are, also as in this case, differences (even though modest) to their respective net family properties depending on the valuation date, caution must be exercised by the court before concluding that the marriage cannot be salvaged. In Newton v. Newton, (1995) 1995 CanLII 17875 (ON CJ), Czutrin J. observed:
… extreme caution should be exercised in fixing a valuation date.
Parties may attempt to manipulate valuation dates to attempt to improve their financial position vis a vis a possible settlement or trial. (bolding added)
Separation and valuation dates are not necessarily synonymous terms. This was made clear by the Ontario Court of Appeal in Oswell v. Oswell, 1992 CarswellOnt 306. In that case, the only issue in the appeal was the valuation date fixed by the trial judge: the husband claimed that the valuation date should be August 1984 when he said that the parties separated even though they continued to live under the same roof afterwards whereas the wife contended that the date should be March 1988 when she was served with a petition for divorce. The choice of date materially impacted the amount of the equalization payment that the husband presumptively owed. After a careful review of the evidence, the trial judge selected an earlier January 1988 date as being the valuation date, a selection that the Court of Appeal observed was “somewhat arbitrary, but the Act contemplates arbitrary decisions”: Ibid, para 1. Those decisions must, however, be supported by the evidence: as per Locco J. in DiFrancesco v. DiFrancesco, 2011 ONSC 3844 at para 38.
A thoughtful and comprehensive review of the general principles and indicia of “living separate and apart” and determining a valuation date was made by Chappel J. in Al-Sajee v. Tawfic, 2019 ONSC 3857 at paras 12-26 and 32-40. In that case the parties disputed their date of separation: this impacted the determination of their net family properties. The husband claimed a date about three and a half years earlier than the wife’s date. Chappel J. thoroughly reviewed the parties’ evidence, assessed their credibility and selected the husband’s date, concluding that despite evidence that the parties, among other things, had travelled together with their children internationally and occasionally spent overnights at the other’s residence there was no resumption of cohabitation having reconciliation as its primary purpose. Relevant to the analysis in the case before this court are the following observations:
… 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 (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: Ibid, at para 39.”
Jayawickrema v. Jayawickrema, 2020 ONSC 2492 (CanLII) at 22-24