Who gets to decide when a marriage or other relationship is over? Do both parties have to agree, in the eyes of the law?
That was one of the questions that the court had to ask in a case called Cammaroto v Cammaroto.
The facts were a little unusual: The wife wanted out of the dead-end marriage but could not get the husband to leave, likely because he was very comfortable having her pay all the bills. He had never really worked throughout their 10-year marriage, and had not shown any real inclination to get a job. As the court described it:
[The wife] testified that she was trapped in the relationship for many years because she could not get [the husband] to leave and she could not afford to carry two residences making her (in her words) “a prisoner” in the matrimonial home.
The true end-date of the marriage was therefore challenging to pinpoint, and the spouses differed greatly on what that date actually was.
Naturally in a more typical marriage-breakdown scenario, the former partners usually decide to stop living together at some point, making it much easier to isolate the date the relationship has officially ended. But where – as here – the couple continues to live under the same roof even after one or both of them consider the relationship to be over, the lines can get a little blurry. It becomes harder to identify the true legal “separation date”.
To frame its determination on this issue, the court stated the law:
Marital relationships cover a broad spectrum and it is difficult to pinpoint when spouses become “separated” while under the same roof. There is no checklist or test that precisely articulates the determination of a valuation date in a case such as this, though courts have articulated factors to consider. It is a fact-driven inquiry in any particular case.
The absence of sexual relations is a factor but it is not conclusive. The degree to which spouses share or segregate income and expenses is important, particularly changes in those arrangements. Communication, social life, interactions with one another in public and behind closed doors all need to be considered. Mutual goals and expectations are relevant. The goal under the Family Law Act‘s property provision is to fix a date on which the economic partnership should as a matter of fairness be terminated. The global question is when it was that the parties knew, or reasonably ought to have known, their spousal relationship was over and would not resume.
On the question of whether one person can unilaterally decide that the marriage is over, the court was unequivocal:
Continuation of a marital relationship requires two people. Either spouse can unilaterally end that relationship without the consent of the other. There are many cases where one spouse knows there will be no reconciliation, but the other may not know. At the same time, the court must be careful to look for some objective evidence upon which to find a date of separation, rather than simply accepting the after-the-fact statements of the party who has decided the relationship is over.
Applying this test to the specific facts in Cammarato, the court found that the relationship had ended a full five years before the couple stopped living together. The court described the marital scene:
By 2005, they ceased to have a sexual or otherwise intimate relationship. Communication between them was largely by notes to one another. They had no social life to speak of. [The husband] had no friends and as a couple they had no mutual friends. Moreover, he objected to and interfered with [the wife’s] association with her own friends and even with her two sons. They had a joint bank account but only [the wife] was putting money into this account after 2006. [The wife’s] description of their relationship is corroborated in some respects by [her doctor’s] notes and the records of the police interventions.
In these circumstances, the court found the marriage was over long before the spouses moved out and went their separate ways. It set the separation date accordingly, for valuing the spouses’ respective assets for equalization.
For the full text of the decision, see:
Cammaroto v Cammaroto, 2015 ONSC 3968 (CanLII)
At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com