Understanding The One Year Separation Period In Ontario Family Law

Nov 14th 2023

Navigating the complexities of divorce and marriage breakdown can be an emotionally turbulent and legally intricate journey. As relationships face challenges and irreconcilable differences emerge, understanding the legal landscape and the steps involved in dissolving a marriage becomes crucial. Ontario’s divorce laws are designed to ensure fairness and protect the rights of all parties involved, yet the process can seem overwhelming. 

In our previous article on Consent and Contested Divorces in Ontario, we discussed the “breakdown of marriage” and the legal test for the same. In this article, we will delve into the first criteria of the legal test for a matrimonial breakdown – separation for at least one year. Separation, as a fundamental aspect of divorce proceedings, holds immense significance in the legal landscape of family matters. We will explore nuances of what constitutes legal separation, providing clarity and conditions necessary to establish a valid separation in Ontario along with the practical and emotional implications of this time period. 

 

What Constitutes Separation?

You can be considered legally separated as soon as you take action to end the relationship. Separation occurs when you and your spouse start to live separately and apart. 

There are two aspects to spouses living separate and apart. The leading case on this is Oswell v. Oswell where the legal test to spouses living separate and apart was propounded:

1. they must live apart from each other, and 
2. there must be an intention on the part of one or both spouses to live separate and apart from each other. The law does not require a meeting of the minds regarding the intention to separate; a physical separation, coupled with the intention of one party to live separate and apart, is sufficient. 

 

First Criteria: Living Apart from Your Spouse 

To live “apart” requires a physical separation between the parties. This means that the parties cannot be cohabiting in a conjugal relationship. A conjugal relationship refers to a marriage or a committed partnership between two individuals.  

 

Can You Live Separate and Apart When Residing in the Same Household?

Yes, you can be legally separated and live in the same house in Ontario. It is possible to obtain legal separation while residing under the same roof. According to the Ontario Divorce Act, the requirement is for couples to live in a state of being “separate and apart” which doesn’t explicitly mandate living in separate residences. The fact that you and your spouse continue to reside in the same home together does not necessarily mean that you are not living apart. Spouses can be living separate and apart under the same roof. The determination of whether parties who reside in the same home are living separate and apart involves a consideration of all relevant factors, including whether they are occupying separate bedrooms and/or areas of the home and any stated reasons for remaining in the same residence. For instance, one of the stated reasons for remaining in the same residence may be for financial constraints as discussed in the case of Kelner v. R. 

By the same token, the fact that the spouses have two residences and spend significant periods apart in the two homes is not determinative of whether they are living separate and apart. As the Ontario Court of Appeal stated in Lachman v. Lachman, spouses in these circumstances will only be considered to be living separate and apart if at least one of them intends to end the marital relationship. In this case, both spouses lived separate and apart from one another but they lacked the second criteria of the test, which is having the intention to live separate and apart. 

 

Second Criteria: Intention to Live Separate and Apart

In order to establish the requisite intent to live separate and apart, there must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the matrimonial relationship, as discussed in the case law of Cheng v. Sze. The term “consortium” refers broadly to companionship, love, affection, comfort, mutual services and support, and sexual relations typically involved in the marital relationship.

 

How Can I Prove Separation?

Proving a separation is not determined by a single factor but rather by a combination of various aspects that reflect the dynamics of a marital relationship. When the court assesses a separation, it considers several elements as it did in the case of Cheng v. Sze:

• Whether you and your spouse have filed taxes jointly;
• Whether you and your spouse shared a bed and engaged in intimate activities;
• Whether you and your spouse participated in social events together and presented yourself as a married couple;
• Whether you and your spouse went on vacations together;
• Whether you and your spouse helped with household chores;
• Whether you and your spouse celebrated special occasions together;
• Whether you and your spouse have purchased gifts or exchanged other tokens of affection with each other;
• Whether you and your spouse are planning a future together;
• Whether you and your spouse attended marriage or relationship counselling.

 

Do I Need to Know the Date of Separation?

The importance of the date of separation (also referred to as the valuation date) is typically the first step in determining whether a spouse owes an equalization payment to the other spouse and its amount (if applicable). 

Section 4(1) of the Family Law Act defines the term “valuation date” as the earliest of the following dates:

• The date the spouses separate and there is no reasonable prospect that they will resume cohabitation;
• The date a divorce is granted;
• The date the marriage is declared a nullity;
• The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted; or
• The date before the date on which one of the spouses dies leaving the other spouse surviving. 

What is Equalization?

When two people enter into a marriage, each spouse becomes automatically entitled to an equal share of the profits of that marriage.

Ontario’s Family Law Act sets out a default position for how property is to be dealt with when spouses separate. In a nutshell, the net growth in value of the assets of each party during the marriage is calculated. That value is called the spouse’s “net family property” (NFP) and the spouse with the larger NFP must make a payment to the other for half the difference to even things out. This payment is called an “equalization payment”. Since properties are valued on the date that the parties separate, your separation date or valuation date is of crucial importance. 

 

What If I Don’t Know My Separation Date?

You may not be sure what your date of separation is. Or maybe you and your partner can’t agree on the date you separated.

To figure out the date you separated, you can look at when you started to:

• live in separate homes;
•  sleep separately if you still live in the same home;
• separate your money and finances; or 
• do things on your own, such as having meals, going on vacations, or celebrating holidays apart.

You can also look at documents like:

• letters, emails, or messages where you or your partner talk about separating; or 
• documents that say you’re not living as a couple. For example, if your income tax return says your marital status is “separated”.

 

Can I Start a Divorce Application Before the One Year Separation Period?

Typically, a divorce is granted when a married couple has been separated for a year. However, it is important to note that you don’t necessarily have to wait a full year before starting the divorce process. You can initiate the proceedings earlier, but the divorce won’t be finalized by a judge until the one-year separation period has passed, at which point a Divorce Order can be granted. 

Understanding the legal intricacies of the one-year separation requirement for divorce in Ontario is crucial for anyone navigating the dissolution of a marriage. As this article has outlined, while the waiting period may appear challenging, it is essential to recognize that it allows a couple time to reflect and make informed decisions about their future. As a law firm dedicated to supporting our clients through every stage of the divorce process, we emphasize the importance of seeking legal counsel early on. By working with experienced professionals, you can ensure that your rights will be protected and the process will be as smooth and efficient as possible. 

At Nazarian Law, we are here to guide you through this legal journey, providing expert advice and compassionate support, so you can confidently move forward into the next chapter of your life. Start by booking a discovery call with us today. 

 

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Disclaimer

The content provided in this article or blog is for informational purposes only. It is not intended to constitute legal advice or to replace the advice of a qualified legal professional. While we strive to provide accurate and current information, the law is complex and constantly changing, and each person’s circumstances are unique. Therefore, you should not rely on this information as a substitute for professional legal advice. This information does not create an attorney-client relationship between you and our law firm. We strongly recommend that you consult with a qualified attorney in your jurisdiction to understand your legal rights and obligations. Always seek legal advice before making any decisions that may impact your legal rights or obligations.