Determining the Date of Separation: Neufeld v Neufeld, 2019 ONSC 1277
In Neufeld v Neufeld, the court was tasked with determining a couple’s date of separation which is vital in moving forward with divorce proceedings because it is the reference point used to determine when marital property shall be appraised. It also signifies the starting point for the countdown of various limitation periods.
The issue stemmed from a disagreement about a couple’s date of separation and the court was tasked with making a determination based on the evidence provided and the relevant factors. The wife says they separated in 2014, a few months before she started a divorce application, but the husband says they separated in 2000 when the wife moved into separate living quarters within the matrimonial home where she continues to reside. Both parties provided the court with much evidence about their relationship between the years 2000 and 2014.
Determining the date of separation is a highly fact-driven analysis unique to each separating party. However, there are common relevant factors determined by the court in establishing if a couple actually intended to be separated, even if they were still physically living together. A careful evaluation of specific evidence of the relationship can be determinative of the accurate date of separation and aid a court in making such a finding. The date of separation becomes a tricky issue when parties remain under the same roof and somewhat continue to carry on a life together, as in the present case. A bad marriage does not indicate separation.
To determine the date of separation or whether separation has taken place involves an analysis of an event of separation, combined with how the parties subsequently live their lives. Separation does not require parties to live in different homes, but it does require them to be apart in other ways including:
- Sleeping in separate bedrooms
- Not telling others they are still together
- Not having meals together or sharing a schedule
- Not attending social activities together
In addition to the separation, there must also be no reasonable prospect the parties will resume cohabitation. In other words, neither party has taken steps to rekindle a conjugal relationship which involves companionship, support, or a sexual relationship.
In Neufeld v Neufeld, the husband claimed they separated in 2000 when the wife moved into separate living quarters on their property. While the wife admits to such a move. she contends it was not for the purpose of separating from her husband. They continued to engage in a sexual relationship, went on family vacations together, attended social events together, and continued to exchange romantic notes which were provided as evidence to the court. Additionally, evidence was shown proving the couple continued to file their taxes between 2000 and 2014 as a married couple.
The husband claimed he had begun a relationship with another woman to which his wife denied ever knowing about, and he was unable to show any proof that she had acquiesced to such a relationship. The wife was able to provide an abundance of physical evidence of their continued relationship while the husband relied on testimony from the couple’s daughters. Interestingly, the wife submitted that the daughters were being untruthful because they were biased by the financial support their father was providing. After evaluating evidence and pointing out the wife’s decision to obtain counsel and commence divorce proceedings in 2014, the judge concluded the separation date was July 2014, as the wife had claimed. The judge was also satisfied on the evidence of the wife’s true intentions to live separately from the husband, including the fact that there was no reasonable prospect of reconciliation between the parties as of July 2014.
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