You may think it should be obvious and people should know when they have separated. However, relationships are complicated, and the timing of when they are formally over can actually be very difficult to pin down. In family law, especially for married spouses who will be equalizing their property, it’s important to have a fixed date, which becomes the date of separation. It has to be one specific day, not the month or year.
Often, people will use the date that their spouse moved out of the home as the date of separation. In some cases, that’s the right date, but often it’s more complicated. Lots of people continue to live together after separation for various reasons, including finances, child rearing, leases, etc. In fact, it is strongly recommended that you see a lawyer after you separate and before you move out. Moving out can impact your rights and responsibilities with respect to your ability to return to the home, custody and access if there are children involved, child and/or spousal support, and how expenses are to be managed.
The legal test as to whether you have separated is whether one person has withdrawn from the relationship, without any reasonable prospect of reconciliation or resumption of cohabitation. The factors we consider when determining whether separation has occurred include:
- What do conversations, statements and any written conversations between you and your spouse say about the separation?
- Are you and your spouse sharing a bedroom?
- Are you and your spouse having sex?
- Are you and your spouse communicating regularly and discussing family problems?
- Is one spouse still providing domestic services, like cooking, cleaning, laundry, etc. for the other spouse?
- Are you eating meals together?
- Are you attending social activities together?
This is not at all an exhaustive list of factors that will be considered, and no one factor is determinative, because every relationship is different.
For those who are married and separating, you must be separated for a year prior to being divorced. That means you will still be legally married, but separated, for a period of time after your separation. Unlike some American states, there is no way to “file for separation” in Ontario (other than filing your taxes as separated).
If you are separated and need advice, or are thinking of separating but want to know what some of the consequences could be, make an appointment with one of our Family Law lawyers and we’ll be happy to help.