[1]         The sole issue in this two-day trial was the parties’ date of separation. The trial judge determined that the parties’ date of separation was May 16, 2021, as asserted by the wife, rather than December 10, 2014, the date claimed by the husband.

[2]         The husband appeals, arguing that the trial judge made palpable and overriding errors in her determinations of fact, and erred in her application of the law to the facts, including by considering the impact of the date of separation on the limitation period for equalization of the parties’ net family properties. The appellant also argues that the reasons of the trial judge are insufficient, and although not strenuously pursued in oral submissions, that the trial judge erred in hearing this as a two-day trial given the volume of evidence.

[3]         The appeal was dismissed with reasons to follow. These are the reasons.

[4]         The parties were married on September 6, 1998, in Toronto. The appellant is a physician and the respondent is a dentist. The parties have two children, now both adults. The parties’ marriage was difficult.

[5]         The appellant’s position at trial was that the parties separated on December 10, 2014 when they ceased sharing a bedroom, after which he says that the marriage was effectively over. He asserted that both parties’ conduct after thereafter was consistent with having separated. The respondent frequently travelled without him, he did not wear his wedding band after 2015, and the parties only attended social occasions together to maintain appearances within their traditional Armenian culture.

[6]         The respondent’s position was that while the marriage was unhappy, the parties did not separate until May 16, 2021, when she told the appellant verbally that she wanted to separate. Three weeks later she emailed him confirming that she wished to separate, stating that she would be putting together her financial disclosure using May 16, 2021 as the date of separation. The appellant responded expressing sadness and stating that he thought they were going to discuss the “future” when the children were adults. He did not, at that time, deny the date of separation asserted by respondent.

[7]         The respondent sought to have the date of separation determined on a short motion. The motion judge determined that the issue required a “focused trial” and set the matter to be heard over two days. Both parties filed affidavits comprising their evidence-in-chief and were cross-examined at trial. In addition, the respondent tendered seven brief third-party affidavits. Transcripts of out-of-court examinations were also filed.

[8]         In her decision, the trial judge summarized the evidence, articulated the test for determining the date of separation, and applied the law to the facts as she found them. She noted that the determination of the date of separation would have implications in terms of any equalization under the Family Law Act, R.S.O. 1990, c. F.3, indicating that if the appellant’s date were to be accepted, the respondent would be outside the applicable six-year limitation period. Ultimately, the trial judge accepted the date of separation advanced by the respondent, finding that, “like many couples, the parties were content to have a different marriage than the one that they had hoped for,” and that while it was “not a marriage that fulfilled expectations,” it was nonetheless a marriage that continued until May 16, 2021.

[9]         In oral submissions, the appellant pursued the following arguments: that the trial judge made palpable and overriding errors of fact and failed to address credibility; that in adverting to the limitation period issue arising from the determination of the date of separation, the trial judge misdirected herself on the relevant factors in relation to the date of separation, placing undue weight on the potential limitation period consequences; and that her six-page decision contained inadequate explanation of why she rejected much of the appellant’s evidence. The appellant also briefly asserted that two days was insufficient for the hearing of this matter, which, he argued, ought not to have been bifurcated from the other issues in the case.

[10]      The respondent argues that the trial judge correctly stated the law on the determination of the date of separation and made no palpable and overriding error in the application of law to the facts. She notes that the law on determining the date of separation is clear, that no one factor is determinative, and that it is for the trial judge to weigh the evidence. She submits that the reasons of the trial judge were sufficient, having set out the law, canvassed evidence of both parties, and identified the most salient evidence, with the benefit of hearing the witnesses directly. The respondent argues that the trial judge made no error in her reference to the limitation period for equalization, and that while a determination of “fairness” of any property outcome is not part of the determination of a date of separation, considerations that relate to the motivations of a party for preferring a particular date may be relevant.

[11]      There is rich jurisprudence on separation and valuation dates. Below, I address contexts in which the date of separation requires determination in a family law case, set out relevant factors to consider, and offer several guiding principles.

[12]      There are at least three contexts in which the timing of spousal separation is material in a family law case: to grant a divorce under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.); to determine spousal support under the Divorce Act, or the Family Law Act; and to determine the “valuation date” for the purpose of equalization under the Family Law Act.^[1] The date of separation under the Divorce Act and the valuation date under the Family Law Act, are frequently, but not always, the same date.

[13]      Under s. 8(1) of the Divorce Act, parties are entitled to divorce when there is a “breakdown of their marriage,” which may, under s. 8(2)(a), be evidenced by having lived “separate and apart” for one year immediately preceding the determination of the divorce proceedings. Section 8(3) adds that either of the parties must have had the “intention” to live separate and apart.

[14]      Under s. 15.2(4)(a) of the Divorce Act, one of three factors for consideration in determining a spousal support claim is the length of time the parties cohabited. Under s. 33(9)(l) of the Family Law Act, one of several factors is similarly the length of cohabitation. By necessity, this determination under both statutes will require not only a determination of when cohabitation started (see Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), at para. 16), but also of the date that the parties commenced living separate and apart: Al-Sajee v. Tawfic, 2019 ONSC 3857, 27 R.F.L. (8th) 269, at para. 3.

[15]      Finally, spousal separation is central to the equalization of net family properties under the Family Law Act. Equalization is undertaken based, in part, on the value of each spouse’s property as at the “valuation date.” This date is defined in s. 4(1) to mean the earliest of several dates, including “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”

[16]      Thus, the “valuation date” requires not just that the parties live “separate and apart” as understood under the Divorce Act both for the purpose of divorce and the calculation of the period of cohabitation for the purpose of spousal support, but additionally, that there be no reasonable prospect of resuming cohabitation. This additional requirement in fixing the “valuation date” allows for the possibility that parties are considered separate and apart for purposes under the Divorce Act, yet the valuation date is found to not yet have crystallized; Taylor v. Taylor (1999), 1999 CanLII 14969 (ON SC), 5 R.F.L. (5th) 162 (Ont. S.C.), at para. 9; Strobele v. Strobele (2005), 34 R.F.L. (6th) 111, at para. 29; Al-Sajee, at paras. 32-40. Despite this nuance to the definition of “valuation date,” many decisions use the terms “date of separation”, “separation date,” and “valuation date” interchangeably.

[17]      Determining when there is no reasonable prospect of resuming cohabitation requires a careful and objective weighing of a range of factors, including the intentions of the parties as demonstrated by their statements and actions. The central issue is “whether a reasonable person, knowing all the circumstances, would reasonably believe that the parties had a prospect of resuming cohabitation”: see Warren v. Warren, 2019 ONSC 1751, at para. 6; Al-Fatlawi v. Al-Bajawi, 2019 ONSC 7210, at para. 5. The identification of the valuation date will be “tied to that date when the marriage is irretrievably broken down and the resumption of cohabitation is not reasonably in the cards.” Al-Sajee, at para. 39, citing Czepa v. Czepa (1988), 1988 CanLII 8647 (ON SC), 16 R.F.L. (3d) 191 (Ont. H.C.J.), at para. 15, rev’d on other grounds (1990), 1990 CanLII 12289 (ON CA), 26 R.F.L. (3d) 118 (Ont. C.A.).

[18]      Just as the date of separation bears on the length of cohabitation for the purpose of determining spousal support under the Divorce Act, the valuation date directly affects the calculation of the limitation period set out in s. 7(3) of the Family Law Act, with respect to claims for the equalization of net family property. Such claims must be brought within six years after the spouses separate and there is no reasonable prospect that they will resume cohabitation.^[2] While, as will be seen below, consideration of the limitation period is not a factor in determining the date of separation itself, a party’s motivation for advancing a specific date may be relevant to an assessment of credibility. Courts are encouraged to exercise “extreme caution” in setting a valuation date as there is “a danger that parties will manipulate the date in order to improve their financial positions”: Taylor, at para. 7, citing Newton v. Newton (1995), 1995 CanLII 17875 (ON SC), 11 R.F.L. (4th) 251 (Ont. U.F.C.).

[19]      Under both the Family Law Act and the Divorce Act, then, courts may be required to assess when the parties began living separate and apart. The same factors are relevant to determining this question and are discussed in the next section.

[20]      The leading case for determining spousal separation remains Oswell v. Oswell (1990), 1990 CanLII 6747 (ON SC), 74 O.R. (2d) 15 (H.C.J.), aff’d (1992) 1992 CanLII 7741 (ON CA), 12 O.R. (3d) 95 (C.A). Weiler J. (as she then was) set out factors that continue to frame the date of separation analysis. In the 35 years since that decision, additional considerations and guiding principles have expanded that analysis, but the law remains clear that this analysis is objective and fact driven. No one factor is determinative and a global weighing of all relevant factors is required.

[21]      I would endorse the approach taken by Chappel J. in Al-Sajee in adopting the Supreme Court of Canada’s list of factors in M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, that are relevant to the existence of a conjugal relationship as also relevant to spousal separation. M. v. H. refers to Molodowich for the “generally accepted characteristics of a conjugal relationship” as including shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple: para. 59. These elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal.

[22]      I would add, however, that when it comes to the timing of spousal separation, the element of change should be emphasized. That is, it is the differences or changes in the characteristics of a conjugal relationship at the alleged separation date – changes in shared shelter, sexual and personal behaviour, services, social activities, economic support, children and societal perception of the couple – that best serve to guide the court in fixing the date of separation or valuation date.

[23]      At the same time, where the issue is date of separation or valuation date as opposed to determining the existence of a conjugal relationship as framed in Molodowich, I would add to the list of potentially relevant considerations the formal steps taken to end the relationship, as well as any steps taken to resume cohabitation.

[24]      I would consolidate the list of relevant factors as follows. The categories necessarily overlap and are not exhaustive.

[25]      Nature of the relationship: This category considers how the parties relate to one another as spouses and intimate partners, emphasizing any changes at the alleged date of separation. Relevant factors may include whether the parties reside separately, either within the home, or in separate residences. If the parties reside separately, whether for defined periods or indefinitely, the reasons for living separately, and the presence (or absence) of personal items at the other party’s residence may all be considered.

[26]      Also potentially relevant to the nature of the relationship are the presence or absence of sexual intimacy, including whether the parties maintain an “attitude of fidelity”; whether the parties are or have been romantically involved with others; arrangements for meal preparation, laundry, cleaning, shopping, and other household tasks; whether the parties continue to act as an intimate partnership, discussing family problems and issues, and making plans for the future; whether the parties share meals together; whether they attend social activities in the community or important events together such as weddings or funerals; whether the parties vacation together, with or without children; and whether the parties continue to exchange gifts, cards, or other tokens of affection. See for example: Oswell, at p. 3-4; Rosseter v. Rosseter, 2013 ONSC 7779, 38 R.F.L. (7th) 339, at paras. 13-40; Warren, at para. 7; Neufeld v. Neufeld, 2019 ONSC 1277, 22 R.F.L. (8th) 287, aff’d 2020 ONCA 395, at para. 75; Al-Sajee at paras. 26, 29.

[27]      Financial arrangements: This category considers how the parties have organized themselves financially, again emphasizing changes at the alleged separation date. Factors include financial contributions towards the necessaries of life (shelter, food, clothing, etc.); sharing of assets, or whether steps have been taken to separate assets (such as, for example, severing a joint tenancy or separating joint bank accounts, credit cards, or safety deposit boxes); the status of spousal RRSP contributions or other joint investments; any new acquisition of property in joint names, joint mortgage renewals, or joint assumption of lease obligations; the use of shared financial advisors, accountants, or other financial professionals. Any changes to designations in a party’s last Will and Testament or changes in beneficiary designations may also be relevant. See for example: Newton, at para. 47; Rosseter, at paras. 41-43; Warren, at para. 7; Al-Sajee, at para. 26; Joanis v. Bourque, 2016 ONSC 6505, at para. 27.

[28]      Interaction with third parties: This category considers how each party and the parties jointly have represented themselves and their relationship status to others, including extended family, friends, community members, professionals, businesses and government agencies, and on social media platforms. This could include whether one or both parties have told family members or friends that they are separated; whether they have continued to give gifts or cards to third parties jointly as a couple; whether they have advised accountants, financial advisors, real estate agents, for example that they are separated; what, if anything, has been represented to the children’s teachers, activity providers, or other third parties about a change of relationship status; how either or both parties have represented themselves in banking documents such as loan or mortgage applications, or whether they have represented themselves as separated or married on their income tax returns. See for example: Rosseter, at paras. 44-47; Warren, at para. 7; Al-Sajee, at para. 26. Relationship status as presented by a party on social media may also be relevant.

[29]      Formal steps taken to end the marriage/relationship: This category relates to whether a party has taken legal steps consistent with an intent to end the marriage/relationship, and could include having consulted a lawyer about divorce, meeting with a family mediator to discuss separation, or having had a draft separation agreement prepared. See for example: Oswell, at p. 11; Rosseter, at para. 49; Al-Sajee, at para. 26.

[30]      Any steps taken to resume cohabitation: This category is particularly relevant to the second part of the test under the Family Law Act, for the purpose of establishing the valuation date. Considerations may include whether the parties have been engaged in couples therapy, marriage counselling, mediation, or other efforts to meaningfully “put their relationship back together”: Torosantucci v. Torosantucci (1991) 1991 CanLII 12851 (ON SC), 32 R.F.L. (3d) 202, (Ont. U.F.C.), at para. 14. Related steps that may overlap with the other categories could include joint purchase of property, joint execution of a lease, new joint investments, or renewed travel as a romantic couple. As noted by Chappel J. in Al-Sajee, in assessing such steps to establish a reasonable prospect of resuming cohabitation and counter a proposed valuation date, there must be “more than wishful thinking on the part of either party”: at para. 37, citing Torosantucci, at para. 14. Further, “[h]alf-hearted suggestions … will not necessarily move the valuation date forward”: Al-Sajee, at para. 37, citing Strobele, at para. 32.

[31]      The following principles should guide the approach to the above factors:

[32]      I make the following additional comments: any determination of the separation date or valuation date is necessarily, as can be clearly seen above, a determination of fact and credibility falling squarely within the province of the trial judge. Absent an extricable legal error, this determination attracts a high level of deference. Trial judges see and hear witnesses and are uniquely placed to undertake the nuanced assessments required to determine the applicable date: see Cheng (ONCA), at para. 4; Al-Sajee, at para. 4.

[33]      I note, also, that the court is not obligated to choose between the dates proposed by the parties. Cheng v. Sze, 2021 ONCA 346, 56 R.F.L. (8th) 264, at para. 6.

[34]      Further, given the often-polarized nature of the evidence, focused third party evidence, such as affidavits, may be very helpful to the court. In addition, documentary evidence reflecting how the parties have represented themselves to the world may also assist in the court’s assessment.^[4]

[35]      Finally, while a court must determine a date of separation or valuation date with precision, notwithstanding the wide range of factors and the often-imprecise nature of the separation process, parties may agree to a date that suits their requirements, while litigating remaining issues.^[5]

[36]      In this case, the motion judge directed that the matter be put to a focused trial for determination of the “date of separation,” without specifying whether this was for the purpose of determining the length of cohabitation for spousal support purposes or for establishing the valuation date for equalization. Both parties’ affidavit materials however make clear that the shared and overriding concern was to assist in determining property issues.

[37]      The reasons of the trial judge, though not lengthy, undertake the core aspects of the analysis set out above, with attention to the factors which she, in her assessment, identified as most relevant to the marriage and separation of this couple.

[38]      In exploring the uniqueness of this marriage, the trial judge noted the parties’ challenges with and focus on having children, their goal to build a “comfortable and secure nest for the family”, and the mutual priority placed on professional success and economic security.

[39]      The trial judge correctly set out the law in the context of determining not just the date of separation but the valuation date under s. 4(1) of the Family Law Act, citing the relevant caselaw. She highlighted that a bad marriage, or a marriage that disappoints, does not necessarily mean that parties have separated. She correctly noted that the way parties live their lives as married will inform the assessment of whether and when one or both parties consider themselves to be separated. She recited the factors as set out in Oswell and subsequent caselaw, noting that no one factor is determinative, and that the decision to separate must be communicated clearly.

[40]      The trial judge briefly reviewed the parties’ evidence. While I agree with the appellant that greater clarity regarding findings of fact and credibility versus recitation of evidence would have been helpful, it is clear from reading the reasons as a whole, that she considered both parties’ evidence fully, and that on balance she found the wife’s evidence to be both more reliable and more credible. The trial judge had the benefit of detailed affidavits from both parties, seven third-party affidavits and transcripts of out-of-court examinations. Considering all the evidence before her, the trial judge highlighted relevant factors such as the following:

[41]      Having considered and weighed the evidence, the trial judge concluded that “the parties were content to have a different marriage than the one they had hoped for” and that they separated, without any possibility of reconciliation, on May 16, 2021 as asserted by the wife.

[42]      I reject the suggestion that the trial judge mis-directed herself when she referred to the fact that the determination of the date of separation was linked with the limitation period in relation to any equalization claim. In my view, she was simply stating the obvious in the context of the materials before her: if the appellant succeeded in advancing his alleged date of separation, it would be to his financial benefit; if the respondent succeeded in advancing her alleged date of separation, it would be to her financial benefit.[6] While, as I noted at the outset, this is not a factor in determining the date of separation itself, it is the context in which the determination frequently takes place and often the very reason for making it. And, as indicated, financial motivations which could suggest a reason for manipulating the alleged date could be a consideration: Taylor, at para. 7. The trial judge made no finding that either party was motivated by manipulating the valuation date to their benefit.

[43]      Nor do I agree with the appellant’s argument that what appears to be a misstatement of whether the appellant continued to wear his wedding band after 2015 constituted a palpable and overriding error. The trial judge considered and weighed a wide body of evidence and addressed numerous factors before reaching her conclusion on a balance of probabilities. She explicitly considered the appellant’s evidence. Even if she did misstate this factual issue, it did not amount to a palpable and overriding error.

[44]      Nor do I accept the suggestion that the lack of reference to certain evidence, such as changes to contributions to the joint account after 2017, that the respondent attended with a divorce coach rather than a therapist, or that birthday and anniversary cards became less affectionate, compromises her analysis. The trial judge was not obliged to refer to each piece of evidence in her reasons.

[45]      Further, as this court recently noted, the fact that the evidence could have been weighed or interpreted differently does not amount to palpable and overriding error: Tsarynny, at para. 21. I see no basis to interfere with the trial judge’s interpretation of the evidence that was before her.

[46]      Finally, I find no error in the trial judge addressing the date of separation within the context of a two-day trial, as she did. The appropriate procedure was directed by the motion judge, who considered it necessary to determine the date of separation by way of a two-day trial, rather than on a motion, thereby bifurcating the date of separation/valuation date analysis from the balance of the issues. While the materials before the trial judge were voluminous, she concluded that she was able to consider the materials and oral evidence, and the reasons reflect that she adequately did so. Contrary to the appellant’s assertion, the trial judge’s determination is in line with the framework set out in Simioni v. Simioni (2009), 2009 CanLII 934 (ON SC), 74 R.F.L. (6th) 202, which requires that bifurcation serve the interests of justice. Addressing narrow issues such as the date of separation efficiently and proportionately can only assist in the overall effectiveness of moving family law cases to resolution within the spirit of r. 2 of the Family Law Rules, O. Reg. 114/99.

[47]      For these reasons, I do not accept the appellant’s arguments that the trial judge erred and, thus, the appeal was dismissed.

[48]      I would set the costs at $15,000 payable by the appellant to the respondent.