Legal Separation: some factors for consideration

One of the most common questions in family law is “when am I legally separated?” Like many things in law, the answer to this question depends on specific facts and circumstances.

Although many would believe that parties are “legally separated” when they stop living together, the legal reality is not so simple. Admittedly, living in separate residences is a very strong indicator that a couple may be separated. However, many couples continue to remain living under the same roof even though they are separated for many reasons such as limited finances, the unavailability of alternative accommodations, or for their children.

From a legal standpoint, when a court is trying to determine whether parties are legally separated, there are several factors that they would consider, including (but not limited to):

• Whether the parties communicate to their friends and family that they are separated, or together;
• Whether the parties eat meals, or attend events together;
• Whether the parties keep joint or separate bank accounts;
• Whether the parties continue to share their household chores (such as cooking, cleaning etc);
• Whether the parties share the same bed;
• Whether the parties declare that they are “separated” or “married” on their income tax returns;
• Whether the parties continue to have intimate relations.

This is not an exhaustive list. Depending on the circumstances, each of these factors can be given more or less weight. To determine whether a couple is still married, or separated, a court will use these factors. Ultimately, the question hinges on whether the court finds that a reasonable observer would reach the conclusion that the parties have separated from one another.

The case of Greaves v. Greaves decided in the Ontario Superior Court of Justice further elaborates on some of the factors:

• There must be a physical separation… Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;
• There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;
• The absence of sexual relations is not conclusive but is a factor to be considered;
• Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.
• Although the performance of household tasks is also a factor…weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.
• The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent… [a]n additional consideration…in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns.

This case is an excellent example of how two parties can have different dates of separation and offers an interesting look into some of the factors that both parties presented to the court.

Similar to the case above, there are many cases where the parties cannot agree on the date of separation. Before a long drawn out legal case to combat which party’s date of separation to use, consider whether the date of separation will have a significant impact on your finances going forward (including things such as spousal support, child support, equalization, etc). If the impact is minimal, you may consider a compromise.

Regardless of the financial impact, for many couples, this date is critical from an emotional perspective as it represents the day their relationship ended. While the emotional weight of the date of separation should never be undermined, separating couples should also remember that it could be the first step to moving forward, and the start of a new chapter in their lives.

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