Date of Separation, Date of Marriage in Separation and Divorce
Only your financial circumstances from the date of marriage will affect your entitlement after the marriage breaks down.
These “profits” of the marriage are usually determined from the date of marriage, till the date of separation.
Each spouse becomes entitled to an equal share of the net family property accrued during the marriage.
The value of assets and debts of a couple is usually determined as of the date of separation.
Also the value of assets and debts of a couple as of the date of marriage.
There are several important milestones that spouses who have decided to obtain a divorce must keep in mind. While some of these important dates and time limits depend on certain divorce issues such as property division claims or custody, other time limits apply to most divorces.
For instance, since child or spousal support often need to be settled in a divorce, both parties need to understand what amounts to the date of separation and how to calculate it. Other dates relating to time limits for filing equalization of property, financial disclosures etc. may also be important.
This article, explains these important dates in Ontario divorce proceedings, particularly the date of marriage and date of separation. The article also explains the implication of these dates and how to determine when they start counting.
Date of Separation
Although it may be memorable for other reasons, the date of separation is a vital milestone for divorce proceedings. There are several reasons for this.
First, the value of assets and debts of a couple is usually determined as of the date of separation. This is also why it is often called a “valuation date”. Usually, the value of a property may vary, depending on the date on which it is valued. And for the purpose of equalization proceedings, it is the value of your property on the date of separation that matters, regardless of its current value.
For instance, assume you own a rental property valued at $70,000 on 5th January, and then $50,000 on 16th. If your date of separation falls on the 5th you have to share the value of the property at that date. But if it falls on 16th, your liability is much reduced, even if the value of the property later rises.
Second, the date of separation is also the date on which support obligations usually commence. The obligations may accrue from or be valued from this date in favour of whichever party is awarded support.
Third, the limitation period for property equalization claims begins to countdown as from the date of separation. Accurately determining the date of separation may be vital to ascertaining how much time you have left to file the relevant divorce claim.
Seeing its importance, the next question is how do you determine the date of separation? The Family Law Act (s. 4(1)) regards the “valuation date” as the date from which the parties separate without any reasonable prospect that they will resume cohabitation. For non-cohabiting couples, it is the date from which a reasonable person would believe the relationship is over.
However, neither of these help couples accurately determine the date of separation. Many questions can still arise, such as what happens if they are still living under the same roof. The court will consider several factors in coming to a conclusion, including whether they:
- Share the same room
- Go out together as a family
- Eat meals together
- Take vacations together
- Have separated their finances
- Report themselves as married or separated on their income tax returns
- Tell other people they are separated or together.
In the case of Oswell v Oswell, the Ontario High Court of Justice court set out criteria that may be considered to determine is separation has occurred. These include:
- Physical separation between the parties
- Withdrawal by one or both spouses from matrimonial obligations
- Absence of sexual relations
- Absence of joint social activities, changed meal patterns, breakdown of communication
- Non-performance of household tasks that are peculiar to either spouse
- Separate plans for assets
If you are confused as to how these factors apply in your case, a professional mediator can provide necessary guidance.
Date of Marriage
The date of marriage can seem like a distant memory, especially with divorce just over the horizon. But it will be important to keep this date in mind as it also determines important proceedings. Thankfully, this date can often be easier to determine.
Under Ontario family law, when two people get married, each spouse becomes entitled to an equal share of the net family property accrued during the marriage. These “profits” of the marriage are usually determined from the date of marriage, till the date of separation.
The court will usually add up the property accumulated during the marriage and subtract this sum from the assets of each spouse on the date of marriage. Whatever amounts remain are what will be equalized between the parties.
Each spouse is allowed to deduct the value of any property they owned as at the date of marriage from the net family property. Also, any pension value accrued before the date of marriage will be allowed as a deduction.
Keep in mind that the law generally does not concern itself with what happened before the marriage. This can be an important consideration where you and your spouse cohabited for a length of time before getting married. Even if there was a material change in your finances, assets or debts during that period and this is attributable to your shared circumstances, the law cannot take this into account.
Only your financial circumstances as from the date of marriage will affect your entitlement after the marriage breaks down.
Current Financial Information
In every divorce proceeding that involves a money issue, it will be necessary for both parties to provide a full picture of their finances. These financial disclosures are necessary in order to determine several issues including equalization payments, child support or spousal support.
For instance, judges are required to set child support payments in accordance with the table amount under the Child Support Guidelines. It will be impossible to determine the appropriate amount without an accurate understanding of each spouse’s finances. This is why financial disclosure is mandatory when there are money issues to be resolved.
According to Rules 13(3.2) & (3.3) of Ontario’s Family Law Rules, each spouse must make financial disclosures to the other spouse within 30 days of serving their divorce application or answer. The documents required for this financial disclosure are extensive, including the following:
- Income tax returns and notices of assessment for the past 3 years
- Most recent pay stub
- Statement of performance-related pay
- Statements of bank, RRSP and investment accounts as at the date of separation and date of marriage
- Statements on the type and number of shares held in any public company and several other documents.
It is important to be accurate in making these financial disclosures as courts do not look kindly on parties that try to hide their money. Parties that wish to have more control over how their finances are treated during divorce can choose to go through mediation instead.
Critical time limits you need to keep in mind
There are several time limits that each spouse should keep in mind as it relates to property division, child custody and support. These limitation periods can operate as a bar to pursuing a claim if you allow them run down without taking action. Some of the limitation periods of note include:
- A claim for equalization of net family property must be made within the earlier of:
- 6 years from the date of separation;
- 2 years from the date of a divorce order; or
- 6 months from the date of your spouse’s death
- A claim in equity for real property must be made within 10 years from the date the claim arose. These claims are made to contest that the legal title to land in favour of a party does not reflect the true owner. The limitation period may start to run even before the date of separation.
- A claim in equity for other property must be made within 2 years from the date the claim arose, including any period before the date of separation. These claims are usually made to contest the legal title to a bank account or asset other than land.
- An application to divide Canada Pension Plan (CPP) credits must be made within 4 years of the date of separation, except the former spouse gives written consent to file at a later period.
- Application for retroactive support and requests for income financial disclosure must generally be made within reasonable time.
- For custody or access, the time to make a claim runs out when the child turns 18 years old, unless the parents are married and the child remains legally unable to make his/her own decisions.
If you are pursuing other claims that do not fall strictly within family law, such as claims for battery, defamation and the like, there are other limitation periods that apply.
Number of separated people in Canada 2000-2020
Divorce can often be complicated due to the numerous rules that must be borne in mind. Staying on top of the process will require working with a professional that can advise you on the process and guide you through.
If the prospect of divorce proceedings proves to be overwhelming though, as they often are, a professional mediator can help you and your spouse come to a mutually satisfactory resolution.
Divorce law in Ontario favours equalization above all else. While that gets everything off to a good start, your ability to secure a neat divorce depends on your ability to work things out in the various agreements you must sign before, during, and after your marriage ends.
Are you having trouble reaching an agreement on your finances? Do you want to avoid going before the judge and asking for help? Consider working with a family mediator who can help you end your marriage in a way that is peaceful, cost-effective, and child-focused.
Would you like to learn more? Get in touch for a Get Acquainted Call to learn more about finding a separation agreement with a soft landing.
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We help smart and successful separating couples create separation agreements with clarity and soft landings for secure futures in 4 meetings or less without all the lawyer created overwhelming conflicts, confusion and costs.
Ken Maynard CDFA, Acc.FM
I help smart and successful couples, create separation agreements with clarity and soft landings for secure futures, in 4 meetings or less without all the lawyer created overwhelming conflicts, confusion and costs. You can work with me by video conference or with a DTSW associate at any of our 6 DTSW Greater Toronto mediation centers, including | Aurora | Barrie | North York | Vaughan | Mississauga | Scarborough.
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