Date of Separation and Equalization Payment Calculations

This case deals with determining the valuation date, which becomes extremely important when claiming an equalization payment. The valuation date is based on the date that the parties separated and there was no reasonable prospect of resuming cohabitation. The contentious part of this case arose when the parties had to determine when they actually separated. The parties were married from July 3, 1987, and both parties were 48 years old at the time of the proceedings.

The Mother is claiming the parties separated on September 3, 2005. She argues that the above is their separation date because that is when she verified (e.g. drove to her best friend’s house to find the Father’s car parked there) that the Father was having an extra-martial affair with her best friend, despite his continual denial of such an affair. Subsequently, the Mother moved out of the matrimonial bedroom and moved to a bed in the den of the said home.

The Mother was devastated and unable to cope as a result of realizing that her best friend was having an affair with the Father. Also, the Mother stated that the parties acted in all respects as husband and wife until the purported separation date. For instance,

1. they continued their share of work in maintaining the household,
2. they continued to have joint accounts,
3. they continued to socialize both in an outside of the home with friends and family, and
4. they had voluntary sexual relations. It was only until September 3, 2005 that the parties confronted the children of the marriage to inform them that they were separating.

The Father is claiming that the parties separated on November 5, 2004. He argues that on the same day, the Mother moved out of the matrimonial bedroom. The Father stated that the parties had a Separation Agreement (“Agreement”) and the date contained within the Agreement was November 5, 2004. However, the Court was unwilling to use the separation date within the Agreement because they felt that the Mother signed the Agreement without appreciating the impact of such an Agreement. After all, she did not have any independent legal advice; there was no full financial disclosure between the parties; and the Father took advantage of her stress and vulnerability which compromises the integrity of the bargaining process.

The Court decided to set aside the Agreement as a result of the lack of material disclosure and unconscionability. Also, The Father unsuccessfully tried to use a family friend as a witness that would confirm the parties separated on the above noted date. However, the Court determined that the family friend posed serious creditability issues because of his inconsistent statements, and thus the Court did not give weight to the friend’s testimony.

Based on the circumstances of this case, the Court adopted the Mother’s date of separation as they found her account of events to be more plausible. Since the Court finalized the date of separation, the issue of calculating equalization and spousal support remained outstanding, and would proceed to trial.