Breaking up and making up - Reconciliation and Divorce

Kylie Jenner and her boyfriend Tyga have had a rocky couple of weeks. TMZ reported in late November that the young couple appeared to be breaking up, but then reconciled with Kylie publicly declaring that she intends to marry Tyga. Sources then say that there was never an "official" break up, but that Tyga has moved out of Kylie's apartment to make space between them for professional reasons. Their current relationship status is murky and somewhat confusing for their fans.

Though Kylie and Tyga are not married spouses, what impact would a similar situation of break-up, make-up, and break-up have on the divorce process for a couple living in Ontario?

Reconciliation can happen at any time during the separation and divorce process. The Divorce Act has provisions to address this reality. Under section 8, if there appears to be any possibility of reconciliation by the spouses during any stage of a divorce proceeding, the court may:

  • adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and
  • with the consent of the spouses or in the discretion of the court, nominate
    • a person with experience or training in marriage counselling or guidance, or
    • in special circumstances, some other suitable person,

to assist the spouses to achieve a reconciliation.

In fact, Canadian family lawyers and the courts have a duty to promote reconciliation, if possible, under sections 9 and 10. For lawyers, their duty involves canvasing the chances of reconciliation with each client and discusses available options such as marriage counselling.

Furthermore, the court must be satisfied that there is absolutely no possibility of reconciliation before a divorce proceeding can move forward, except when the circumstances clearly indicate that it reconciliation is inappropriate, such as where there is domestic violence or abuse. If Kylie and Tyga were married and going through this uncertainty of break-up, make-up, and giving each other "space", their lawyers would very likely suggest marriage counselling and a judge might adjourn the court proceedings until they are certain whether their marriage is truly at its end.

Many separated couples considering reconciliation may resume living together under the same roof. While this arrangement is both practical and convenient, it also has implications for determining whether, and when, there was a breakdown of marriage. A breakdown of marriage is the only ground upon which spouses can divorce in Canada. The most common type of marriage breakdown is when a couple lives separate and apart for a year.

If spouses living separate and apart resume cohabitation for a period, or periods totaling, at least 90 days or more for the primary purpose of reconciling, this can interrupt or terminate the time accumulated towards their required one year for divorce. Essentially, this would reset the clock and the parties will have start counting their one year countdown from the beginning.

If a married Kylie and Tyga are actually broken up as of last week then later move back in late December before breaking up again in early April, not only would their one year countdown have restarted, but their date of separation would no longer be in November 2015. Instead, their date of separation would be the day in April 2016 that they broke up again.

A change in the date of separation as a result of reconciliation can have a significant impact on the spouses' division of property which only applies to married couples. The equalization process values property as of the valuation date, which as defined under section 4(1) the Family Law Act the earliest of the following dates:

  1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
  2. The date a divorce is granted.
  3. The date the marriage is declared a nullity.
  4. The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.
  5. The date before the date on which one of the spouses dies leaving the other spouse surviving.

Thus, in our hypothetical with Kylie and Tyga, their valuation date for equalization would be also be in April 2016 because their cohabitation and attempt to reconcile in December would indicate that a reasonable prospect exists. As such, a valuation date under the Family Law Act is not triggered until the couple separates with certainty that the relationship has ended. The mere fact that spouses attempt to reconcile can thus move the valuation date for the purposes of equalization.

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