Background
The parties were married on September 6, 1998, and have two children, now both adults. The husband asserts that the date of separation was December 10, 2014. He submits that this was when the parties stopped sharing a bedroom, and that their subsequent conduct was consistent with having separated. He notes that after this date, the wife frequently traveled without him, he stopped wearing his wedding band, and the parties only attended social events together to maintain appearances within their traditional Armenian culture.
In contrast, the wife claims the parties separated on May 16, 2021. She states that she verbally communicated her desire to separate on that date, and followed up three weeks later with an email confirming her intention and indicating that she would be preparing her financial disclosure based on that date. The husband responded with sadness, stating he thought they would revisit their future once the children were adults, but did not deny the date of separation she asserted at that time.
The wife brought a short motion seeking a determination of the date of separation. However, the motion judge concluded that the issue required a focused trial and scheduled the matter to be heard over two days. Ultimately, the trial judge accepted the wife’s position and found the date of separation to be May 16, 2021.
On appeal, the husband argues that the trial judge made palpable and overriding errors of fact and failed to address credibility. He also claims that the judge misdirected herself by placing undue weight on limitation period implications associated with the date of separation. Furthermore, he asserts that the six-page decision failed to adequately explain why much of his evidence was rejected and that two days was insufficient time to properly hear the matter, which he believes should not have been bifurcated from the other outstanding issues in the case.
The Law
Under the Divorce Act, the date of separation is defined under section 8(1) as the point at which there has been a breakdown of the marriage, which may be evidenced under section 8(2)(a) by the parties having lived “separate and apart” for at least one year. Section 8(3) adds that at least one of the parties must have had the intention to live separate and apart.
Under the Family Law Act, the relevant concept is the "valuation date" defined in section 4(1), which is not solely about living separate and apart, but also requires that there be no reasonable prospect of resuming cohabitation. This distinction matters significantly in the context of limitation periods, as the six-year limitation period for an equalization claim begins to run from the valuation date. The central question in determining whether there is no reasonable prospect of reconciliation is whether a reasonable person, knowing all the circumstances, would believe that cohabitation was no longer a possibility. As such, the valuation date must be tied to the moment the marriage has irretrievably broken down and the resumption of cohabitation is no longer reasonably in the cards.
The analysis is objective and fact-driven, and no single factor is determinative. Courts assess a constellation of indicators, generally drawn from the commonly accepted characteristics of a conjugal relationship: shared shelter, sexual and personal behavior, division of services and chores, social activities, economic interdependence, involvement with children, and societal perception. These elements may be present to varying degrees and not all are necessary to establish the existence—or end—of a conjugal relationship. Particular emphasis is placed on identifying changes in these characteristics over time. When determining the date of separation or valuation date, courts will consider both formal steps taken to end the relationship and any steps to resume cohabitation.
Several specific areas of inquiry may guide the court. Regarding the nature of the relationship, relevant factors include whether the parties are living together or separately (including the reasons for such arrangements), whether they remain sexually intimate or romantically involved with others, how they share household responsibilities, whether they continue to discuss life decisions together, share meals, attend social events or vacations, or exchange gifts. Financial arrangements are another key factor, including whether they continue to share expenses, have separated financial assets (such as bank accounts, credit cards, or property), or made changes to beneficiary designations or estate planning. How parties present themselves to third parties also matters—for instance, whether they tell family, friends, professionals, or institutions they are separated, and how they present themselves on legal, tax, and social media documents. Formal steps taken to end the marriage—such as consulting a lawyer, preparing a separation agreement, or engaging in mediation—are also relevant, as are efforts made to resume cohabitation, such as couples therapy, joint property purchases, or renewed romantic vacations. Courts caution, however, that there must be more than mere hope or vague suggestions of reconciliation to delay the valuation date.
Certain guiding principles emerge from case law. The true intent of the parties, as shown through conduct, outweighs any stated intent. A unilateral decision to separate can be valid without the other party’s agreement. There must be clear and unequivocal communication of the decision to separate, often demonstrated through concrete actions rather than just words. Importantly, the court must assess the relationship as it existed for that couple, not against a stereotypical ideal of marriage. Separation is often a process, not a single event, and the relevant legal factors are not a checklist.
Ultimately, the Ontario Court of Appeal (“ONCA”) noted that determining the date of separation or valuation date is a factual inquiry grounded in credibility and falls within the trial judge’s discretion, which attracts significant deference on appeal absent legal error. The court is not bound to choose between the competing dates proposed by the parties and may benefit from focused third-party affidavits or documentary evidence demonstrating how the parties presented themselves to the world.
Application
In determining the date of separation, the ONCA held that the judge correctly applied the legal test, emphasizing the importance of the parties’ intentions, conduct, and the overall context of the relationship. After reviewing the evidence—including affidavits, third-party statements, and transcripts—the judge found the wife’s evidence more credible and concluded that the parties separated on May 16, 2021.
The judge based this finding on several key factors. When the wife emailed the husband referencing May 16, 2021, as the separation date for financial disclosure purposes, the husband responded with sadness but did not assert an earlier separation date. The parties continued to identify themselves as "married" on their Canadian tax returns and did not elect to file as “married but filing separately” on their U.S. returns. No steps were taken to divide assets or obtain legal advice prior to May 2021. The parties also continued to travel together with the children, shared meals, and maintained household routines. While the wife consulted a divorce coach in 2019, she remained conflicted and did not see herself as separated until May 2021.
The trial judge rejected the husband’s argument that the wife had manipulated the separation date for financial advantage, noting that while the limitation period for equalization was relevant contextually, there was no evidence of improper motive.
Ultimately, the court found no error in the trial judge’s interpretation of the evidence or in her decision to bifurcate the issue of the date of separation. The appeal was dismissed, and the husband was ordered to pay $15,000 in costs to the wife.