One of the first things I am asked by potential clients, usually way before I’m even retained, is how long will it take for them to be “legally separated.” Most people are quite surprised to hear that by the time they see me, they are already are.
Most people believe that to be legally separated they must be living in separate homes, that a written agreement needs to be signed, or that a judge must have made a court order of some kind. None of this is true. In family law, you are legally separated once you are living separate and apart with no chance of reconciliation. “Separate and apart” means, in general, that by actions or words, one of the spouses has decided that the marriage is over — for good.
Why is the date of separation relevant? Two reasons. The first is that under Canadian law, you can only get a divorce one year after separation. There are two exceptions to this — cruelty and adultery — which are almost never invoked. The second, and far more important reason, is that the date of separation is the date on which all of the property is valued and by which the property payment — called an “equalization payment” is determined. We call this date the “valuation date.”
Most of the time the valuation date is easy to determine. It’s the date one of the spouses tells or writes to the other that he or she wants a separation or divorce. Sometimes this is followed up by a letter from a lawyer, or the spouse moves out, which makes it even easier.
But sometimes the date is not so clear. The parties have talked about separation and threatened each other with divorce for years. They have talked about or gone to marriage counselling intermittently. Or, things have just been generally bad between them and it’s not clear exactly when reconciliation became impossible. In these situations, case law has developed some rules of thumb to help guide lawyers and judges:
1. Physical Factors: When did the parties last engage in sexual intercourse? When did they stop sleeping in the same bed? If one committed adultery, when did this relationship begin?
2. Economic Factors: When did the parties, or one of them, stop putting money in the joint bank account? Did the person who normally pays the bills threaten to stop doing so or transfers a large amount of money out of the “family” account?
3. Social Factors: When did they stop going out as a couple, taking vacations or attending social functions such as weddings or bar mitzvahs together? When did they stop having meals together?
4. Marriage Counselling: When did they start, and more importantly, stop attending marriage counselling?
None of the above factors are determinative, meaning none of them in and of themselves decide the parties are separated. Sometimes they will seem inconsistent. I have also seen cases where the parties had not slept together for years but continued to vacation after the professed date of separation and even ate together as a family and did their laundry together.
Often, even when the parties differ on the date of separation it makes little to no difference since the value of their property is not that different between the two dates. In these cases, usually the lawyers will calculate the difference and advise the clients to either select one of the dates or choose a midpoint date. But, in cases where the dates lead to a huge discrepancy in each party’s net worth, the lawyers will need to figure out what the true separation date is and, if they cannot, a judge will have to make a decision on it. Usually it does not get to that point because with the aid of lawyers, one date will be chosen or a compromise will be reached.
So, before you commit to a “valuation date” in your negotiations, make sure you have a clear understanding of what your date of separation is, as it may greatly impact on your final property settlement. If you are not sure why your spouse has selected a particular date as the separation date, ask yourself — and the spouse. Ask for documents proving the value of your spouse’s assets and debts at the proposed date, and compare these to “your values” to make sure the date isn’t being manufactured in order to secure an unreasonable advantage on the property issues. Finally, if there is any uncertainty in your position, make sure all proposals or offers regarding the date of separation are marked “without prejudice” so you will be able to change them later on. Once a court case has been commenced however, you will have to commit to a particular date which is difficult (but not impossible) to change later on, so make sure you have plenty of discussion with your lawyer about the date.
Brahm D. Siegel is a
senior partner at Nathens, Siegel LLP and a Certified Specialist in
Family Law by the Law Society of Upper Canada. Starting today and every
Thursday he will be sharing his thoughts – and advice – on family law
issues. If you have a question for Brahm, please email him at firstname.lastname@example.org and he will try to answer it here.