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One of the most important factor in a family law matter is the date of separation—the day you and your spouse are considered to have officially separated. This date has legal consequences. It can determine:
When you are eligible to apply for a divorce
How assets and debts are valued for division
When child support and spousal support obligations begin
Whether certain insurance benefits or designations remain valid
How the Law Defines Separation
Neither the Divorce Act (Canada) nor the Family Law Act (Ontario) provides a step-by-step formula for establishing the date of separation.
Under the Divorce Act, separation begins when spouses live apart and at least one of them intends to live separate and apart permanently.
Under Ontario’s Family Law Act, it is the day the spouses separate with no reasonable prospect of resuming cohabitation.
Because these definitions are broad, the courts—through case law—have developed guidance on how to determine the date of separation. Judges consider a variety of circumstances, looking at the relationship as a whole.
Factors the Court Considers
Case law has identified several categories of factors that may help determine when separation occurred. These include:
Spousal Relationship – changes in intimacy, socializing, shared activities, and emotional connection.
Family Life – patterns of daily living, caregiving, communication, and shared responsibilities.
Family Finances – joint accounts, shared expenses, property acquisition, and official financial declarations (CRA).
Public Activities – how the couple presents themselves publicly, including social events, community involvement, and online presence.
Residences – living arrangements, use of bedrooms, homes, locks, and household belongings.
Additional Indicators – consulting a lawyer, notifying the other spouse, or informing children, family, or friends.
These factors are not a checklist—no single factor automatically determines the date of separation. Each factor may carry different weight depending on the nature of the relationship. Courts must consider all relevant factors together and assess the circumstances objectively to determine whether the relationship has irretrievably broken down.
Why This Matters
Establishing the date of separation can be complex, particularly when spouses continue living together or maintain some aspects of shared life. Since this date impacts property division, support obligations, and divorce eligibility, it is often a critical issue in family law cases. Courts rely on the overall picture rather than isolated actions.
Jessica Luong is the founder and principal lawyer of J. Luong Law, a boutique family law firm with offices in Toronto and Windsor, Ontario. With experience in both courtroom advocacy and out-of-court negotiation, she offers a comprehensive approach to resolving complex family law matters. Jessica is recognized for her skill in combining strong advocacy with a client-centered approach, ensuring that her clients’ needs and best interests are always at the forefront. She can be reached by phone at (226) 256-9988 or by email at Jessica@jluonglaw.com
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