In a two-part series we did recently, called Legal Separation: A Blueprint Part I and Part II we talked about the hallmarks of a legal separation by spouses. It is a list of literally dozens of established factors, and it’s used by courts to determine the precise separation date when the divorcing spouses themselves cannot agree. This is an important exercise, since the legal separation date is the starting point for determining various “next steps” – such as the valuation of property and determining the amount of any equalization payment.
A recent decision called Taylor v. Oliver shows how very challenging it can be for courts, when asked to apply those factors to a real-life scenario.
And to make it a little fun, we’ve turned it into a little challenge for you (our readers). We have listed some of the facts and factors that the court took into account. Then you can be the judge.
As background: The husband and wife were both 55 years old. The dated during high school, then initially went their separate ways. After decades apart, they reconnected in the early 2000s and began living together in 2004. They got married eight years later, in 2012, but sadly the relationship did not last.
The husband says they separated on October 15, 2015, when he moved out of their shared bedroom. This was after an argument with the wife (the “Big Fight”), when he declared that he was “done”. However, they continued to live under the same roof, for financial and parental reasons.
After the Big Fight, the husband said their manner of interacting changed: They were now just two people co-parenting; there was no more interacting as a couple.
In contrast, the wife said they only separated about 2.5 years later, on May 1, 2018. This was the date she started the process of moving out of the matrimonial home. Prior to this time the husband took little to no steps to separate, she said, other than move out of the bedroom after the Big Fight. She conceded that their tone and content of communicating was stiffer, but that was largely all that changed in her view.
The court was asked to make a ruling on which of these two dates was the correct one, in law. It considered all the facts, but with special focus on: 1) the couple’s relationship after the Big Fight in 2015; 2) a Draft Separation Agreement the wife prepared in 2017; and 3) the period in 2018 when the wife started making plans to move out.
After the Big Fight in 2015
The court heard that:
- The couple continued to deal with their finances separately, as they had always done even before the Big Fight. (In fact this continued right up until they each got lawyers, and to some extent, even after).
- They continued to purchase and share meals together as a family, long after 2015. However, sometimes they did take their meals separately.
- The spouses attended some shared birthday celebrations and family outings together between 2015 and 2018.
- They also socialized as a couple on a few occasions during that time – for example to go to a neighbour’s to swim. (The husband claimed this was merely for the sake of the children. He said they never went out on their own, as a couple).
- They still discussed doing renovations to their matrimonial home between 2015 and 2018. These included proposal around a family pool and solarium.
- The wife continued until 2016 to do unpaid work for the husband’s business, often on a daily basis. Sometimes she and the husband would have lunch together.
- They went on vacation to the Dominican together in 2016, to attend a family wedding. They shared a single hotel room (together with their children), but did not share a bed.
- The husband gave the wife a blue jeep as a gift, in 2016 – several months after he said they separated. It was kept in his name, but only the wife drove it. (The husband testified to the court it was really a gift for the wife and the children, as co-parents).
- Both husband and wife filed their 2015 and 2016 tax returns with Canada Revenue Agency indicating they were “married”. The wife first prepared her own return as “separated” in 2017; the husband did so in 2018. (The husband testified this delay was to reap some alleged tax benefits).
- The wife was out of work for the years between 2015 and 2017. This left her financially dependent on the husband, but he did not even talk to her about getting a job – not once – at any time after the alleged October 15, 2015 separation date.
The Draft Separation Agreement
The court heard that:
- On September 28, 2017 – nearly two years after the husband moved out of the bedroom – the wife presented the husband with a draft separation agreement, based on a template she downloaded from the internet. She left it on his bed.
- Neither of them ended up signing the agreement, and neither formally hired lawyers until 2020.
- That 2017 draft agreement referred to October 15, 2015 as the separation date. When the wife created the document from the internet template, she did not have legal advice about the significance of that date. She picked it because it was the date they’d stopped sharing a bedroom.
May of 2018 (when the wife started preparing to move out)
The court heard that:
- The spouses told their children about the separation in May of 2018.
Question: With these facts in mind, in your view when did these spouses separate?
The court’s Answer: On all the facts, the court agreed with the wife’s later date of May 1, 2018. It explained some of the rationale this way:
120 In conclusion, I find that the parties maintaining separate bedrooms, and the dwindling of their sex lives, did not on their own make them a separated couple, when looked at in the totality of the evidence. I find there are far more unexplained inconsistencies in the husband’s account as to the circumstances surrounding an alleged October 15, 2015 date of separation. I find the letter and the draft separation agreement were not delivered to him in 2015. Therefore, I also reject his evidence that they honoured its terms, even though it was unsigned. While I am not certain exactly when it was delivered to him by the wife, I find it to be more proximate in time to her asserted date of separation. I accept that that would have occurred in 2018.
121 An alleged 2015 delivery of the letter and draft separation agreement was a significant part of the husband’s account to support his date of separation. He went so far as to say it solidified his decision to separate. But he did not get it in 2015. This significantly calls into question the husband’s evidence of a separation in 2015.
PART V: SUMMARY OF CONCLUSIONS AND ORDER
149 In conclusion, other than his move to the separate bedroom and the absence of a sexual relationship after October of 2015, there is no evidence that the husband took any steps to prepare for separation until after the wife’s date. In particular, there is no evidence that he consulted with a lawyer, otherwise communicated with the wife about the separation either in writing or orally, participated in a discussion with the children, or took any steps to financially prepare, until 2018. And to the contrary, between October of 2015 and May of 2018, there are specific acts of an ongoing relationship, such as the filing of income tax returns indicating married, the purchase of the Jeep, and the matrimonial home title transfer.
150 By contrast, in or around the wife’s date of separation of May 1, 2018, she moved out, delivered a draft separation agreement, had a discussion with the children, and changed the way she had been filing her income taxes, with the husband following suit. The parties made changes to their financial status quo, including how they paid their living expenses and the Jeep expenses, and the husband made some payments for the wife’s support.
151 For those reasons, this Court concludes that the parties separated on May 1, 2018 with no reasonable prospect that they would resume cohabitation.
How well did you do, in adjudicating on this matter?
Full text of the decision: Taylor v. Oliver, 2022 ONSC 7186 (CanLII)