Does the End of the Relationship Have to be a Two-Sided Decision?
In an older case called Strobele v. Strobele, the court considered a narrow and easily-overlooked question: If spouses agree to separate and one of them wants to reconcile but the other does not, how do you know when the marriage is officially over for the purposes of valuing the marital property?
After a lengthy marriage, the couple was beginning to have marital difficulties. After enlisting the help of another couple who were mutual longtime friends, they agreed to a written plan of action that involved the wife leaving the matrimonial home for two months. The idea was that the spouses would get some time and space from each other, seek support and perhaps some counselling, and then regroup to re-evaluate their marriage.
The court heard evidence that although even though it was not his idea, the husband was willing to participate in the plan, even though the wife had a “firmer goal” of reconciling than he did at that point. As the court explained:
[The wife] sought a commitment from [the husband] that he would not have other women in the house during that time. [The husband] demurred and it was left that each would do as she or he pleased during that time apart. … [The wife] makes the point that she only agreed to leave on the understanding that she was not abandoning the home or the relationship and I accept and I think it is clear that she was not abandoning either at that time. It does seem clear that [the husband] was more ambivalent about the long-term prospects than was [the wife]. He would not agree to the monogamy stipulation during the time apart and he required the two-month limit on the period they would cohabit after the time apart.
As it turned out, when the two months was up the husband told the wife that he did not wish to reunite after all, and that the relationship was over. After a brief return to what was now a tension-filled home, the wife moved out permanently and started divorce proceedings.
This gave rise to a legal question, namely the date on which the couple could be said to have formally separated, for the purposes of pinpointing the valuation date for the equalization of their matrimonial property. The wife placed the separation date as being the point at which the husband stated he did not wish to reconcile (i.e. after the two-month break), whereas the husband claimed it was a full six months earlier.
The court pointed out that under the Ontario Family Law Act, the valuation date is defined to be “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.” Although there is no single factor that determines when this legislative test has been met, the key issue is when the parties know, or – acting reasonably – ought to have known that their relationship was over and would not resume. The court said:
Continuation of a relationship requires two people. Either can end the relationship without the consent of the other. As a matter of common sense, there will be many cases where one spouse knows that there will be no reconciliation and the other does not because the one has decided he or she does not wish to reconcile, but the other does not yet understand this. A fair determination of this issue requires that an objective eye be cast upon the unique circumstances of the couple.
Turning that “objective eye” to the couple’s situation, the court ascertained that the separation date was immediately after the two-month break, when the husband indicated a firm intent not to reconcile. At that point, there was no reasonable or foreseeable prospect that they would resume cohabitation, and the marriage had irretrievably broken down.
In contrast, the earlier negotiations mediated by the other couple, and the action plan involving the two-month separation, still pointed to both spouses entertaining the possibility that the marriage could be saved, even if the wife was hoping for that outcome more than the husband.For the full text of the decision, see:
Strobele v. Strobele,  O.J. No. 6312, 34 R.F.L. (6th) 111