Proving Your Date of Separation for an Ontario Divorce

The date you separated is one of the most useful facts in a divorce. It decides when the one-year period begins, and it also affects how property is valued. If you and your spouse remember it differently, or if you stayed under the same roof, the date can become a real point of dispute.

This article explains how separation is counted under the Divorce Act, why the date matters for property under the Family Law Act, and what evidence helps. There is no single test for every situation, so a lawyer can confirm how the rules apply to your facts.

Why the date matters

Breakdown of the marriage is shown if the spouses have lived separate and apart for at least one year before the divorce is decided and were living separate and apart when the proceeding started. Your date of separation is therefore the starting point for that year.

It also matters for property. The valuation date is the earliest of several dates, and one is the date the spouses separate with no reasonable prospect of resuming cohabitation. Net family property is the value of property a spouse owns on the valuation date, minus debts and permitted deductions. RRSPs and pensions are counted as property.

How separation is counted

Spouses are treated as having lived separate and apart for any period during which they lived apart and either spouse intended to live separately. So the question is not only where each of you slept. It is also whether either of you intended to live separately.

A failed attempt to get back together does not necessarily reset the clock. The one-year period is not treated as interrupted if the spouses resumed living together for one or more periods totalling not more than 90 days, mainly to try to reconcile. If you lived together for longer than that, the effect on your date is a question to raise with a lawyer.

Some couples separate but keep living in the same house, and a lawyer can explain what courts may consider when deciding whether spouses are separated. No simple test applies to every case, so courts look at the facts.

Evidence that supports your date

How a court weighs your evidence depends on your situation, so it is worth confirming with a lawyer. In general, records that show a clear change in the relationship on or near the date you give are worth keeping.

• Messages or emails where either of you said the relationship was over.
• A lease, address change, or utility accounts showing one person moved out.
• Changes to bank accounts, benefits, insurance or tax filings.
• Calendar entries, journal notes or letters written around the time.
• If you stayed in one home: records of separate bedrooms, separate meals, split bills and a stated intention to live separately.
• Statements from friends or family who knew when you separated.

Keep copies of everything. Avoid changing or deleting messages, because that can hurt your credibility.

When the dates do not match

The date used for a divorce and the date used for property are not always the same in practice. For property, the test is separation with no reasonable prospect of resuming cohabitation. For the divorce, the usual route is living separate and apart for at least one year before the divorce is decided, and spouses are treated as living apart for any period when they lived apart and either of them intended to live separately. Breakdown can also be shown without the one-year wait if the spouse the proceeding is brought against has, since the marriage, committed adultery or treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable. A couple who tried to reconcile might argue about which date applies for each purpose.

Other rules may also turn on separation. A claim for equalization has a time limit that is the earliest of two years after a divorce or nullity judgment, six years after separation with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death. The court may extend that time if there are apparent grounds for relief, the delay was in good faith, and no one will suffer substantial prejudice. For common-law spouses not covered by Part I of the Family Law Act, the pension valuation date is the date they separate.

Separation also affects some tax and wills questions. Spousal RRSP attribution does not apply if the spouses are living separate and apart because of marriage breakdown at the time of the withdrawal. A separated spouse can lose a gift in a will if the testator dies after separation and the conditions in the Succession Law Reform Act are met, which include living apart because of marriage breakdown for three years, a valid Family Law Act separation agreement, or a court order settling their affairs. For the three-year route, the spouses must have begun living apart on or after the date the Accelerating Access to Justice Act, 2021 amendment came into force.

What to do next

• Write down your date of separation and why you chose it, while memories are fresh.
• Check whether your spouse agrees. If so, put the date in writing in a signed, witnessed separation agreement, which is not enforceable unless it is in writing, signed and witnessed.
• Collect the evidence listed above and keep it in one place.
• Note any time you lived together again after separating, and for how long.
• Ask a lawyer how to handle a disputed date or a same-house separation before you file.

Frequently asked questions