In Ontario the legal definition of separation simply requires the parties to separate and for there to be no reasonable prospect that they will resume cohabitation. It is possible to live in the same house as your ex-partner and to be considered separated.
In fact, it is not uncommon to see
separated spouses continue to reside in the same home following separation. This can happen for several reasons, including financial reasons, concerns about losing parenting rights, etc.
For family law purposes, as long as two parties are living separate and apart with no prospect of reconciliation, they are considered to be separated. Living separate and apart means that either one spouse has communicated to the other that the relationship is over (or both have agreed that it is over), and they are no longer living together as a couple. Often this means they are sleeping in separate rooms, no long attending social or family events together, have told others the relationship is over, etc.
The date that two parties separated carries significant relevance – it sets the start date for most limitation periods. It sets the ‘valuation date’ for the division of net family property for married spouses. It also sets the end of the relationship duration for spousal support purposes.
There are several reasons why two people may wish to (or be forced to) continue to reside in the same home following their separation, whether for financial, childcare, or other reasons.
That being said, the date of separation is relevant to certain claims that parties may need to address as part of the ultimate resolution of their matter and if they are not clear on the date of separation, they might need to provide proof/arguments to support the date that they actually separated. Examples of some factors that a court would look at to determine the legal date of separation include:
- Did the parties continue to integrate their finances?
- Did they hold themselves out as ‘being together’ to family and friends?
- Did they make efforts at their relationship, such as attending counselling?
In order to address/resolve the issues arising from a separation, whether parenting, support or property division, it will be necessary to negotiate a separation agreement, or initiate a court application.
It is important to note that the
definition for separation is different for CRA purposes. The CRA considers parties separated for tax purposes when they have been living separate and apart for 90 days or more, and generally this means living in separate households, or proving separate living quarters in the same home.
Once spouses are considered separated by the CRA, this can have several tax effects, including but not limited to the amount of tax benefits, credits and deductions.
It is thus important to obtain legal advice very quickly once a separation occurs in order to ensure that legal rights arising from a separation are protected.
