Many couples will have no trouble identifying the precise moment at which the relationship was fully and finally over. But when a couple’s separation process involves many unsuccessful attempts at reconciliation or a post-separation “friends with benefits” arrangement, the legal the date of separation may not be immediately evident. There are various important considerations and tests that go into making that determination, since the actual date on which a couple formally separates is an important factor in law that governs the manner in which their finances will be dealt with in the future.
Although the Canadian Family Law does not have a cut-and-dried approach, the courts have provided some guidance in the area of determining when a couple has formally separated using the principles described below to assist in making the determination through the case of Rosseter v Rosseter. This case involved a married couple who had separated for short periods of time on many occasions (due largely to the husband’s alcoholism), but each time had reconciled a little later. Finally in the spring of 2001, the wife went to live with her parents for a few months, and then rented her own apartment. From that point on, the husband and wife always kept separate residences, but there were subsequent attempts at reconciliation even as late as 2009.
The court was asked to determine a narrow question that would affect the couple’s “valuation date,” which is defined under the Family Law Act by reference to “the dates the spouses separate and there is no reasonable prospect that they will resume cohabitation.” By extension, this affected the manner in which the former couple’s property would be divided.
The court scrutinized the many sides of the couple’s relationship, and in doing so, came up with a list of 16 factors that it considered in detail:
- Maintaining Separate Residences.
In Rosseter v Rosseter, the couple had lived separately since 2001. But the court pointed out that “[j]ust as parties can live separate and apart under the same roof, they can cohabit under different roofs.”
- Reasons for Maintaining Separate Residences.
The wife had moved out because of the husband’s alcoholism. But this consideration can include other reasons, such as whether the spouses have formed new relationships.
- Eating Meals Together.
This not only includes consideration of whether meals are eaten together, but also where (i.e., at home or at restaurants).
- Other Services Performed for One Another.
This involves whether household services are provided (i.e., washing clothes, cleaning and shopping).
- Presence of Personal Items at the Other Party’s Residence.
In Rosseter v Rosseter, the wife bought sleepwear and underwear for the husband to use while he was at her new residence; the wife also left some clothes at the former matrimonial home.
- Attending Social Functions Together.
These include attending social functions, entertainment outings (such as films and the theatre together) and recreational activities.
- Celebrating Special Occasions Together.
The court considered that the husband still bought the wife a birthday gift each year, and bought her flowers on one occasion more than 5 years after she got her own apartment.
- Helping Each Other During Difficult Times.
The court heard evidence that the husband stayed with her for almost a week when her father died. They also attended a few family funerals together.
- Vacations Together.
Here, the couple had travelled to Florida on four occasions long after the wife had left the matrimonial home in 2001, and slept in the same room. However, later vacations together did not go well.
- Sexual Intercourse.
The degree to which the parties remained intimate was a significant factor in determining the date of their separation. In this case, the spouses continued to have sex about a half-dozen times each year after 2001.
- Fidelity to One Another.
This was another very significant factor. As the court put it, “When determining whether a couple are cohabiting, the frequency of sexual intercourse matters less, in my opinion, than the identity of the person with whom it occurred.”
- Financial Support.
This involved examination of whether the spouses took steps to separate their financial affairs.
- Shared Use of Assets.
This included items such as vehicles. In this case, the couple also shared a safety deposit box.
- The Parties’ Behaviour Towards One Another in the Presence of Third Parties.
The court examined how the couple portrayed themselves in public, whether they sat together at family or formal functions, and whether they were physically affectionate.
- How the Parties Referred to Themselves in Documents.
The court looked at whether the couple refer to themselves as “married” rather than “separated” when filing income tax returns, for example.
- Steps Taken Towards the Legal Termination of Their Relationship.
The court looked at the concrete steps that each of the spouses may have taken to formally end their union. This included consulting lawyers, filing a petition for divorce, etc.
Overall, the court found that there was no reasonable prospect of the resumption of cohabitation for this couple. Some half-hearted suggestions by each to attend counselling during the separation periods were not acted upon, which the court described this way: “both parties demonstrated a willingness to attend counselling by making the request, and the presence of a stubborn streak by refusing it.”
This list from Rosseter v. Rosseter is quite useful and when taken together, shows the factors that a court will take into account as indication of whether there is a “reasonable prospect of the resumption of cohabitation” within the meaning of the Family Law Act. If enough of the factors are not present, then it can be said the parties are legally “separated” and the date of that event is what is used as the valuation date for the property division exercise.