Family

Your date of separation and why it matters

By Robina Khan

The term “date of separation” is so often used in family law that legal professionals sometimes forget the weight that it carries outside of the legal process. For many, the date of separation is an unforgettable and emotionally driven date in their timeline. As painful as this date can be, it also marks a period of transition into what will hopefully be made up of healing and moving forward.

Sometimes, the date of separation is clear-cut. In other instances, it can be difficult to ascertain. If there is any uncertainty in the date, people can look to any or a combination of the following, on this non-exhaustive list:

  1. The date that one spouse, or both spouses together, communicate that the relationship is over;
  2. The date that the spouses separate their finances;
  3. The date that one spouse moves out of the bedroom, or the home;
  4. The date that spouses stop holding themselves out as a couple to friends, family, and neighbours; and/or
  5. The date that spouses stop doing the things they regularly did as a couple (i.e. eat meals together, take vacations together etc.)

The date of separation will then have a bearing on property equalization, support, and divorce.

Property: Under the Family Law Act, each spouse’s individually-held assets and liabilities are valued as of the date of separation for the purpose of equalizing property. Sometimes, the date of separation can have a significant impact on the value of certain assets or debts. For example, we have seen examples of large changes in value with stock market and real estate bubbles.

Despite this treatment under the law, there is flexibility in mediation for parties to agree to use a different date to determine the value of assets and liabilities if it makes the most sense for their family and circumstances to do so. The value of jointly-held assets isn’t often affected by the date of separation because any increase or decrease in these assets after the date of separation will be shared.

Support payments: the date of separation is often used to measure the length of the relationship for spousal support purposes. Depending on the circumstances, it may also be the date from when child and/or spousal support payments are slated to begin.

Divorce: Subject to certain exceptions, the general rule is that a divorce may not be granted until one year after the date of separation.

It is best to determine the date of separation early in the process because it is often the date for which the parties will obtain their supporting financial disclosure. Sometimes, there is a dispute as to which date of separation to use. If this happens, it is worthwhile to review the impact of both dates of separation with the assistance of a lawyer or a mediator to determine whether the difference is significant enough to warrant the dispute or whether a compromise makes more sense for your family.

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