Why is the date of separation important?

Jill has made it quite clear that she did not want to continue to live with Jack in their family home and as a result, Jack has been looking at his options.  Jack knows that Jill has spoken to the bank and was pre-approved to purchase a new home, a move he clearly disagrees with. Jack is also getting extremely concerned about various withdrawals made by Jill against their joint line of credit without his knowledge or consent ($1,500 one week ago paid by cheque to “Albert & Albert Law”, $2,000 which was transferred  to her personal bank account and another $500 the destination of which he does not know).  Jack knows that these withdrawals will not bankrupt the family, but he sure disagrees with having to pay one half of Jill’s lawyer’s fees!

Are you having similar concerns?  If so, then it is essential for you to understand the concept of the “date of separation” and its importance in your divorce or separation.  In all Canadian provinces and territories, spouses have the right to ask that their family property be divided equally (or fairly, depending on the province or territory) between them.  Most provinces and territories confine this right to married people ONLY. As a result, if you are living in a common law relationship in one of those provinces, the rules concerning the division of your property will be different. What is important to remember is that in most Canadian jurisdictions (including in the province of Ontario), when you are married it is not the property itself that gets divided (in species), but rather its value.  What value do you use? In most provinces (including in the province of Ontario), the property subject to division is valued as of the date of the parties’ separation.  This means that in principle, whatever happens after the date of separation is irrelevant to determine each party’s entitlement to a share of the parties’ family property. 

Let us make it more simple. In the case of Jack and Jill, if Jack was to win one million dollars one day after the date of separation, he would not have to share it with Jill.  Similarly, if one week after the separation Jill was to take a $50,000 personal loan to purchase a brand new Mercedes, Jack would not be entitled to share the value of the Mercedes, but nor would he be liable for the $50,000 debt.  It is very important to keep in mind, however, that while Jack does not have to assume one half of Jill’s $50,000 debt, if Jill was to use the parties’ joint line of credit to purchase the car, Jack may become liable towards the bank for the entire amount.  When negotiating their settlement, Jill will have to account to Jack and reimburse him for any liability (i.e. debts and bank withdrawls) contracted by her after the date of the parties’ separation. 

How do we determine the date of separation?  The date of a couple’s separation is not the day the parties signed a separation agreement, nor the day that their divorce is granted.  The date of separation, in very simple terms, is the day that one of the spouses communicates to the other his or her intention to separate in a way that makes it clear that there is no possibility of reconciliation. For most couples, this date will be quite clear (in most cases one of the spouses moves out of the home that very day, or shortly thereafter), but for some other couples it will not be that clear and it will be a question of evidence if the spouses later cannot agree on a specific date.  Also remember that it is possible (and in fact very common) to be considered separated even if you continue to live under the same roof.

Jill – I’m keeping the house!

After all of her attempts to convince Jack to give their 15-year marriage a chance, Jill realized that her marriage is really over.  Jill is hurt and angry.  She feels betrayed and Jack’s presence in the home is unbearable.  Jill is walking on eggshells and no one is talking.  To make it worst, Jack still pretends that everything is fine.  The atmosphere in the home is so tense that you could cut it with a knife.  Jill cannot take this anymore.  She barely sleeps at night and she feels sick.  Jack’s suggestion to just continue living together in the same home “for the sake of the kids” while they sort out the legal issues around their separation is complete nonsense.   Jill and the children cannot continue to live in limbo.  The children feel the tension in the home and they are starting to ask questions.  Jill is angry and wants Jack out of the home – the sooner the better.
 

Agreeing on housing arrangements is normally the first thing that ex-partners will need to sort out following the announcement of the separation.  What do we do with the home?  Who goes and who stays?  Do the children remain in the family home or do they move into the departing parents’ new home?   Many issues need to be considered when making new living arrangements.   Here are a few pointers to help you consider your options:

• Issues surrounding the care of the children need to be sorted out.  The best way to handle this is to make a temporary parenting plan for your children.  Abandoning the home with the kids and without notice to the other parent is NOT the way to proceed, unless you are faced with serious
  safety issues (such as domestic violence, in which case you should seek guidance before leaving with the children).  Agreeing to a temporary plan of care (even one that you may not feel is the best) will ensure that both parents’ rights towards their children are protected while they negotiate a final – and perhaps more appropriate – plan for their children. 
• It is not uncommon for a family to have a tough time meeting their monthly expenses on their combined income.   The prospect of dividing this family income into two different households (thus, doubling the parties’ combined housing expenses) may not be an option.   If finances are an issue, you may have to negotiate temporary financial arrangements with your former spouse to meet monthly expenses, even if only for a short period of time, for example while the home is being sold or refinanced with a view to be transferred to the other spouse.  You may consider obtaining a joint line of credit to pay the extra monthly expenses with the understanding that when the home is sold or transferred, the line of credit will be paid off.  
• If temporary financial arrangements cannot be made, you may have to consider whether your family members or a friend can provide you with temporary housing.   Perhaps the parents can rotate in and out of the home to care for the children (each of them having exclusive possession of the home while they care for the children) until things are settled.  Just remember that there are various alternatives that you may not think about, but that an experienced family lawyer, financial divorce specialist or financial advisor can help you craft. 
• If financial considerations are not an issue, and the parties cannot agree on temporary living arrangements, the court can make an order giving one of the parties (with or without children) the exclusive use / possession of the home for a certain period of time (normally until the sale of the home or until some event occurs).  However, seeking the assistance of the court should be your last option.  In fact, this costly option should be used only in case of an emergency or if all other attempts to negotiate an acceptable agreement (temporary or final) have failed.