Why Your Separation Date Matters in Your Divorce

In a recent Article titled Can You Be Separated While Still Living Together in Ontario? https://www.torontodivorcelaw.com/why-the-separation-date-matters/ we talked about how – for economic reasons – it’s becoming more common for divorcing couples to continue living together pending their divorce finalization.  Under Canadian law, it’s fully possible to be separated and still live under the same roof.  For those who might be in this predicament, we also provided a little “how to” on being legally separated under the same roof checklist.

All of this begs the question: Why is establishing a legal separation so important?

The answers are fairly straightforward:

Separation Date is Tied to Family Law Rights

First of all, under Canadian Family Law legislation and principles your official separation date affects:

• Divorce eligibility. Canadian divorce law mandates married couples are only eligible for divorce when they meet certain criteria, the most common being that they are legally separated for at least one year prior to their divorce application. Naturally the formal separation date is when the clock starts ticking, on that one-year period.
• The FLA “valuation date”. The Ontario Family Law Act (FLA) sets up a regime for dividing up your and your Ex’s family property, according to a certain formula. The calculation begins with determining the value of your respecting assets on your official date of separation.
• Deadlines for bringing claims. Certain limitation periods (e. deadlines for filing certain financial support or other claims) start to run on your formal separation date.

Tax Reasons

Your true separation date will also have important tax and benefit implications.

The Canada Revenue Agency (CRA) generally considers you to be separated once you have been living separate and apart for at least 90 days due to a breakdown of the relationship. Importantly, the CRA’s analysis overlaps with the Family Law definition of when you are separated – which means “living separate and apart”.   As we detailed in our previous Article https://www.torontodivorcelaw.com/why-the-separation-date-matters/ it looks at whether you are still functioning as a couple, including whether you share finances, meals, or domestic life.

If you are separated, you are required to update your marital status with the CRA. This can affect:

• Canada Child Benefit entitlements
• GST/HST credits
• Other income-tested benefits.

If you continue living under the same roof, you should be especially careful to ensure that your conduct aligns with the status you report on your taxes. Inconsistent positions – for example, claiming to be separated for tax purposes while still continuing to live as a couple – can lead to reassessments and tax repayment obligations.

When Your Separation Date is in Dispute

If you and your spouse are considering divorce, it’s not unusual that you might be at odds about your formal separation date – especially if you’ve had numerous attempts at reconciliation, or if you’ve continued to live together after your separation.

If at all possible, it’s important to try to come to a mutually-agreed separation date as soon as possible – especially if you are separated but still living together.

If you proceed to litigation with different views on the separation timing, it can be time-consuming and costly to untangle.  Courts will scrutinize the evidence very carefully when the date is contested.  That’s because of the legal impact: A difference of several months – not to mention a year – can make a very significant impact on your respective entitlements and positions in law.

Practical Guidance: Protecting Yourself

There are always practical steps you can take to solidify the official separation date, and protect your legal position:

• Document the separation. Confirm the date of separation in writing — whether by email, text, or a formal letter. This can become critical evidence later.
• Separate your finances. Open individual accounts, stop pooling resources, and keep records of your expenses.
• Change your public and official status. Update your marital status with the CRA and on other official documents, and ensure your conduct is consistent with that status.
• Limit joint activities. Avoid socializing, travelling, or presenting yourselves as a couple.
• Seek legal advice early. A family lawyer can help you structure your separation in a way that minimizes disputes and protects your interests.

Final Thoughts

Determining your legal separation date is one of the most important initial steps that leads toward your divorce.

If you and your Ex are unclear on the true date, or if it might be a source of contention between you, consider giving our offices a call. We’ll give you tailored advice that can help you both move forward.