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torkinmanes.com F O C U S O N FA M I LY L A W When Are Separated Spouses Really Separated? Adam Black You would think that the date of separation between married spouses would be a straightforward matter. In addition, many might ask, "why does it matter?" The reality might surprise you. In June, the Ontario Court of Appeal weighed in on the determination and importance of the date of separation in family law cases. In Martynko v. Martynko, the Court of Appeal (upholding the decision of a lower Court and dismissing the appeal) refused to grant an order for the equalization of the parties' net family property since the wife's claim was made after the expiration of the six-year limitation period following what the Court found to be the parties' date of separation. It was the wife's position that she and her husband had separated less than six years before her claim. The husband disagreed. So did the trial judge and Court of Appeal. Since the parties disagreed on the date of their separation, the Court was asked to decide that issue. Based on the evidence before it, the Court found that the parties had separated "at the latest" by the end of May 2002. The evidentiary record showed that by the end of May of 2002, a. the wife had announced her intention to separate from the husband; b. the parties had discussed and agreed to separate; c. the parties had moved into separate bedrooms, had stopped socializing together and had established separate bank accounts; d. the wife had requested, and received, a total of $50,000 from the husband to buy a new home; and e. the wife had made a down-payment on a new home to be built over the summer of 2002. The wife, on the other hand, argued that since the parties were "exploring the possibility of reconciliation from August to October 2003", the limitation period did not begin to run until those efforts had come to an end. The Court rejected that argument. The Family Law Act provides that the date of separation is "the date the spouses separate, and there is no reasonable prospect that they will resume cohabitation." The lower Court applied the leading case of Oswell v. Oswell in reaching its conclusion. The list of considerations for those who are separating, or who have separated, in determining a date of separation includes, but is not limited to: 1. Physical separation, such as living in separate bedrooms, under the same roof. Couples do not need to live in separate residences in order to be separated. 2. Withdrawal by one or both spouses from the obligations of matrimony or a repudiation of the relationship. 3. Absence of sexual relations is not conclusive, although it is to be considered. 4. An absence of joint social activities, meal patterns and performance of household tasks. The date of separation is important as it will determine the rights and entitlements of the separating spouses insofar as the equalization of net family property is concerned. A separating spouse should consider the items above (and others discussed by the Court) to be clear, as much as possible, on the date of separation, thereby avoiding a later argument about the issue. Moreover, spouses who have been separated for some time, should be mindful of the limitation period and aware of when it began. Adam Black practises in our Family Law Group, in all aspects of family law with particular emphasis on the financial implications of divorce and separation and alternative dispute resolution. He can be reached at 416 643 8808 or ablack@torkinmanes.com. Focus Highlights Laurie Pawlitza was named one of "Top 25 Most Influential Lawyers in Canada" by Canadian Lawyer Magazine. As an acknowldged "Change Maker", Canadian Lawyer noted Laurie's contribution to the profession as Co-Chair of the Retention of Women in Private Practice Project and as the former Treasurer of the Law Society of Upper Canada. Laurie can be reached at 416 775 5192 or lpawlitza@torkinmanes.com. c l i e n t - f o c u s e d s o l u t i o n s® 3 3