Written by Colin A. Steffler
In most cases, for spouses to be entitled to a divorce in Ontario, they have to have lived “separate and apart” for one year. Determining when separation began can also be significant when it comes to the division of family property, as each spouse’s assets and liabilities are usually valued as of the date of separation. However, couples often do not separate all at once, and some aspects of a relationship may continue after others have come to an end. As a result, it can be difficult to determine precisely when two spouses separated.
When called upon to determine when or whether spouses have separated, the court will consider a broad range of factors, falling into seven broad categories. These factors are fairly intuitive and reflect, for the most part, the kinds of things any person might consider in answering the question, “Are these two people (still) a couple?”, such as the following:
Living Arrangements
- Do they live under the same roof?
- What are the sleeping arrangements? Do they share a bed?
- Does anyone else live with them?
Sexual and Personal Behaviour
- Do they have sexual relations? If not, why not?
- Is their relationship exclusive?
- What are their feelings toward each other?
- Do they communicate on a personal level?
- Do they eat meals together?
- What, if anything, do they do to help each other with problems or when they are sick?
- Do they buy gifts for each other on special occasions?
Household Services
- To what extent do they share in tasks such as preparing meals, doing laundry, shopping, and household maintenance?
Social
- Do they participate in social activities together or separately?
- How do they interact with their respective families? How do their families interact with each of them?
Societal
- How do other members of the community perceive their relationship and interact with them?
Financial Arrangements
- How do they arrange their finances? Do they share joint accounts? How do they pay for expenses such as food, housing, and recreational activities?
- Have they made large purchases (e.g. homes, vehicles, etc.) together? Do they own property jointly or separately?
Children
- Do they have, or do they want to have, children together?
This list is not exhaustive and no single factor listed above is determinative; they must be considered together. In other words, it is the big picture, rather than any particular point, that determines whether spouses are separated. As a result, it is possible to live “separate and apart” for legal purposes while still sharing a residence. It is equally possible to be or to remain spouses while living in different homes, or even in different cities. Similarly, you might not be separated even though your sexual relationship ended a long time ago; or, you might still be separated despite having maintained a sexual relationship. As this illustrates, there is no simple formula for determining when separation begins and, thus, no easy answer to the question, “When are you legally separated?”.
Want to get legally separated? Consult with our Divorce Lawyers Barrie.
