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Family - Separation. Kassabian v. Marcarian
In Kassabian v. Marcarian (Ont CA, 2025) the Ontario Court of Appeal dismissed a family law appeal, here where the central issue was date of spousal separation, which the court extensively reviews:C. The Law
[11] There is rich jurisprudence on separation and valuation dates. Below, I address contexts in which the date of separation requires determination in a family law case, set out relevant factors to consider, and offer several guiding principles.
(1) Timing of spousal separation
[12] There are at least three contexts in which the timing of spousal separation is material in a family law case: to grant a divorce under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.); to determine spousal support under the Divorce Act, or the Family Law Act; and to determine the “valuation date” for the purpose of equalization under the Family Law Act.[1] The date of separation under the Divorce Act and the valuation date under the Family Law Act, are frequently, but not always, the same date.
[13] Under s. 8(1) of the Divorce Act, parties are entitled to divorce when there is a “breakdown of their marriage,” which may, under s. 8(2)(a), be evidenced by having lived “separate and apart” for one year immediately preceding the determination of the divorce proceedings. Section 8(3) adds that either of the parties must have had the “intention” to live separate and apart.
[14] Under s. 15.2(4)(a) of the Divorce Act, one of three factors for consideration in determining a spousal support claim is the length of time the parties cohabited. Under s. 33(9)(l) of the Family Law Act, one of several factors is similarly the length of cohabitation. By necessity, this determination under both statutes will require not only a determination of when cohabitation started (see Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), at para. 16), but also of the date that the parties commenced living separate and apart: Al-Sajee v. Tawfic, 2019 ONSC 3857, 27 R.F.L. (8th) 269, at para. 3.
[15] Finally, spousal separation is central to the equalization of net family properties under the Family Law Act. Equalization is undertaken based, in part, on the value of each spouse’s property as at the “valuation date.” This date is defined in s. 4(1) to mean the earliest of several dates, including “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”
[16] Thus, the “valuation date” requires not just that the parties live “separate and apart” as understood under the Divorce Act both for the purpose of divorce and the calculation of the period of cohabitation for the purpose of spousal support, but additionally, that there be no reasonable prospect of resuming cohabitation. This additional requirement in fixing the “valuation date” allows for the possibility that parties are considered separate and apart for purposes under the Divorce Act, yet the valuation date is found to not yet have crystallized; Taylor v. Taylor (1999), 1999 CanLII 14969 (ON SC), 5 R.F.L. (5th) 162 (Ont. S.C.), at para. 9; Strobele v. Strobele (2005), 34 R.F.L. (6th) 111, at para. 29; Al-Sajee, at paras. 32-40. Despite this nuance to the definition of “valuation date,” many decisions use the terms “date of separation”, “separation date,” and “valuation date” interchangeably.
[17] Determining when there is no reasonable prospect of resuming cohabitation requires a careful and objective weighing of a range of factors, including the intentions of the parties as demonstrated by their statements and actions. The central issue is “whether a reasonable person, knowing all the circumstances, would reasonably believe that the parties had a prospect of resuming cohabitation”: see Warren v. Warren, 2019 ONSC 1751, at para. 6; Al-Fatlawi v. Al-Bajawi, 2019 ONSC 7210, at para. 5. The identification of the valuation date will be “tied to that date when the marriage is irretrievably broken down and the resumption of cohabitation is not reasonably in the cards.” Al-Sajee, at para. 39, citing Czepa v. Czepa (1988), 1988 CanLII 8647 (ON SC), 16 R.F.L. (3d) 191 (Ont. H.C.J.), at para. 15, rev’d on other grounds (1990), 1990 CanLII 12289 (ON CA), 26 R.F.L. (3d) 118 (Ont. C.A.).
[18] Just as the date of separation bears on the length of cohabitation for the purpose of determining spousal support under the Divorce Act, the valuation date directly affects the calculation of the limitation period set out in s. 7(3) of the Family Law Act, with respect to claims for the equalization of net family property. Such claims must be brought within six years after the spouses separate and there is no reasonable prospect that they will resume cohabitation.[2] While, as will be seen below, consideration of the limitation period is not a factor in determining the date of separation itself, a party’s motivation for advancing a specific date may be relevant to an assessment of credibility. Courts are encouraged to exercise “extreme caution” in setting a valuation date as there is “a danger that parties will manipulate the date in order to improve their financial positions”: Taylor, at para. 7, citing Newton v. Newton (1995), 1995 CanLII 17875 (ON SC), 11 R.F.L. (4th) 251 (Ont. U.F.C.).
[19] Under both the Family Law Act and the Divorce Act, then, courts may be required to assess when the parties began living separate and apart. The same factors are relevant to determining this question and are discussed in the next section.
(2) Factors to Consider
[20] The leading case for determining spousal separation remains Oswell v. Oswell (1990), 1990 CanLII 6747 (ON SC), 74 O.R. (2d) 15 (H.C.J.), aff’d (1992) 1992 CanLII 7741 (ON CA), 12 O.R. (3d) 95 (C.A). Weiler J. (as she then was) set out factors that continue to frame the date of separation analysis. In the 35 years since that decision, additional considerations and guiding principles have expanded that analysis, but the law remains clear that this analysis is objective and fact driven. No one factor is determinative and a global weighing of all relevant factors is required.
[21] I would endorse the approach taken by Chappel J. in Al-Sajee in adopting the Supreme Court of Canada’s list of factors in M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3, that are relevant to the existence of a conjugal relationship as also relevant to spousal separation. M. v. H. refers to Molodowich for the “generally accepted characteristics of a conjugal relationship” as including shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple: para. 59. These elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal.
[22] I would add, however, that when it comes to the timing of spousal separation, the element of change should be emphasized. That is, it is the differences or changes in the characteristics of a conjugal relationship at the alleged separation date – changes in shared shelter, sexual and personal behaviour, services, social activities, economic support, children and societal perception of the couple – that best serve to guide the court in fixing the date of separation or valuation date.
[23] At the same time, where the issue is date of separation or valuation date as opposed to determining the existence of a conjugal relationship as framed in Molodowich, I would add to the list of potentially relevant considerations the formal steps taken to end the relationship, as well as any steps taken to resume cohabitation.
[24] I would consolidate the list of relevant factors as follows. The categories necessarily overlap and are not exhaustive.a. Nature of the relationship
b. Financial arrangements
c. Interaction with third parties
d. Formal steps taken to end the marriage or relationship
e. Any steps taken to resume cohabitation [25] Nature of the relationship: This category considers how the parties relate to one another as spouses and intimate partners, emphasizing any changes at the alleged date of separation. Relevant factors may include whether the parties reside separately, either within the home, or in separate residences. If the parties reside separately, whether for defined periods or indefinitely, the reasons for living separately, and the presence (or absence) of personal items at the other party’s residence may all be considered.
[26] Also potentially relevant to the nature of the relationship are the presence or absence of sexual intimacy, including whether the parties maintain an “attitude of fidelity”; whether the parties are or have been romantically involved with others; arrangements for meal preparation, laundry, cleaning, shopping, and other household tasks; whether the parties continue to act as an intimate partnership, discussing family problems and issues, and making plans for the future; whether the parties share meals together; whether they attend social activities in the community or important events together such as weddings or funerals; whether the parties vacation together, with or without children; and whether the parties continue to exchange gifts, cards, or other tokens of affection. See for example: Oswell, at p. 3-4; Rosseter v. Rosseter, 2013 ONSC 7779, 38 R.F.L. (7th) 339, at paras. 13-40; Warren, at para. 7; Neufeld v. Neufeld, 2019 ONSC 1277, 22 R.F.L. (8th) 287, aff’d 2020 ONCA 395, at para. 75; Al-Sajee at paras. 26, 29.
[27] Financial arrangements: This category considers how the parties have organized themselves financially, again emphasizing changes at the alleged separation date. Factors include financial contributions towards the necessaries of life (shelter, food, clothing, etc.); sharing of assets, or whether steps have been taken to separate assets (such as, for example, severing a joint tenancy or separating joint bank accounts, credit cards, or safety deposit boxes); the status of spousal RRSP contributions or other joint investments; any new acquisition of property in joint names, joint mortgage renewals, or joint assumption of lease obligations; the use of shared financial advisors, accountants, or other financial professionals. Any changes to designations in a party’s last Will and Testament or changes in beneficiary designations may also be relevant. See for example: Newton, at para. 47; Rosseter, at paras. 41-43; Warren, at para. 7; Al-Sajee, at para. 26; Joanis v. Bourque, 2016 ONSC 6505, at para. 27.
[28] Interaction with third parties: This category considers how each party and the parties jointly have represented themselves and their relationship status to others, including extended family, friends, community members, professionals, businesses and government agencies, and on social media platforms. This could include whether one or both parties have told family members or friends that they are separated; whether they have continued to give gifts or cards to third parties jointly as a couple; whether they have advised accountants, financial advisors, real estate agents, for example that they are separated; what, if anything, has been represented to the children’s teachers, activity providers, or other third parties about a change of relationship status; how either or both parties have represented themselves in banking documents such as loan or mortgage applications, or whether they have represented themselves as separated or married on their income tax returns. See for example: Rosseter, at paras. 44-47; Warren, at para. 7; Al-Sajee, at para. 26. Relationship status as presented by a party on social media may also be relevant.
[29] Formal steps taken to end the marriage/relationship: This category relates to whether a party has taken legal steps consistent with an intent to end the marriage/relationship, and could include having consulted a lawyer about divorce, meeting with a family mediator to discuss separation, or having had a draft separation agreement prepared. See for example: Oswell, at p. 11; Rosseter, at para. 49; Al-Sajee, at para. 26.
[30] Any steps taken to resume cohabitation: This category is particularly relevant to the second part of the test under the Family Law Act, for the purpose of establishing the valuation date. Considerations may include whether the parties have been engaged in couples therapy, marriage counselling, mediation, or other efforts to meaningfully “put their relationship back together”: Torosantucci v. Torosantucci (1991) 1991 CanLII 12851 (ON SC), 32 R.F.L. (3d) 202, (Ont. U.F.C.), at para. 14. Related steps that may overlap with the other categories could include joint purchase of property, joint execution of a lease, new joint investments, or renewed travel as a romantic couple. As noted by Chappel J. in Al-Sajee, in assessing such steps to establish a reasonable prospect of resuming cohabitation and counter a proposed valuation date, there must be “more than wishful thinking on the part of either party”: at para. 37, citing Torosantucci, at para. 14. Further, “[h]alf-hearted suggestions … will not necessarily move the valuation date forward”: Al-Sajee, at para. 37, citing Strobele, at para. 32.
(3) Guiding Principles
[31] The following principles should guide the approach to the above factors:a. True intent: In assessing a party’s intent to separate, it is the “true intent” and not the stated intent that is most salient. While a party may state that they wish to separate, their conduct may demonstrate otherwise: see Oswell, at p. 12; Greaves v. Greaves (2004), 2004 CanLII 25489 (ON SC), 4 R.F.L. (6th) 1, at para. 34.
b. Unilateral decision: The decision to separate does not require the agreement of the parties or a meeting of the minds. It is a decision often made by one party over the objection of the other. As stated in Strobele, at para. 30: “[c]ontinuation of a relationship requires two people. Either can end a relationship without the consent of the other.”
c. Clear and unequivocal communication: While the decision to separate may be unilateral, “a clear statement or unequivocal act by one of the parties of their desire to terminate the relationship will be very relevant to whether the parties are living separate and apart”: Al-Sajee, at para. 26; see also Tsarynny v. Topchiy, 2025 ONCA 175, at para. 19; O’Brien v. O’Brien, 2013 ONSC 5750, at para. 52. The separating spouse must “take some definite steps to notify the world at large of [their] intentions”: Letford v. Letford (2000), 2000 CanLII 22453 (ON SC), 12 R.F.L. (5th) 169, at para. 6. One party cannot separate “in secret”: Chan v. Chan, 2013 ONSC 7465, at para. 37. The communication by a spouse intending to separate, by words or actions, is to be viewed objectively.
d. Uniqueness: Each marriage or relationship is unique, as is each separation. Weighing the incidents of separation requires a careful assessment of the underlying characteristics of the marriage. For example, in Chan, McGee J. found that the purpose of the parties’ marriage after the children were raised was primarily to shelter and foster wealth. Consequently, evidence of changes in the financial union was more probative of separation than joint activity or companionship. Similarly, in Button v. Button (2000), 2000 CanLII 22520 (ON SC), 8 R.F.L. (5th) 20, at para. 79, physical intimacy was not a significant feature of the marriage and thus its cessation did not weigh heavily in determining the date of separation. Separation should be assessed not against a stereotypical image of a marriage or conjugal relationship, but in the context of the lived marriage or relationship of the parties.
e. Separation is often a process: As the caselaw makes clear, separation for many couples is best described as a process rather than an event, with multiple smaller steps and decisions leading to the conclusion that one or both parties have decided to separate within the meaning set out above: see Cheng v. Sze, 2020 ONSC 937, 38 R.F.L. (8th) 165, at para. 3, aff’d 2021 ONCA 346, 56 R.F.L. (8th) 264.[3] Yet, in accordance with the applicable legislation and governing caselaw, the task for the court is to determine, on a balance of probabilities, at what point—that is, on what day specifically—the requirements to establish the date of separation or valuation date have been made out. This is a process that requires careful attention and nuanced assessment by the trier of fact.
f. The factors are not a checklist: Related directly to the uniqueness of each relationship, courts must be cognizant that the factors above do not comprise a checklist, with an implied tabulation of factors for or against any alleged separation date. No one factor is determinative, and any factor considered must be weighed in the overall assessment of the uniqueness of each relationship, and of each separation: Al-Sajee, at para. 26. Judges are not obligated to advert to every possible factor, but must consider all relevant factors. It is possible individual factors may seem to contradict one another: Mathers v. Crowley, 2019 ONSC 5088, at para. 27.
g. Objective assessment: While each marriage/conjugal relationship is unique and the incidents of separation must be assessed in that specific context, the judicial assessment is necessarily objective. As stated in Strobele, at para. 30: “[a] fair determination of this issue requires that an objective eye be cast upon the unique circumstances of the couple.” Each marriage has its own dimensions and the court must look at the circumstances, objectively, to determine when it has irretrievably broken down: Klimm v. Klimm, 2010 ONSC 1479, at para. 13. [32] I make the following additional comments: any determination of the separation date or valuation date is necessarily, as can be clearly seen above, a determination of fact and credibility falling squarely within the province of the trial judge. Absent an extricable legal error, this determination attracts a high level of deference. Trial judges see and hear witnesses and are uniquely placed to undertake the nuanced assessments required to determine the applicable date: see Cheng (ONCA), at para. 4; Al-Sajee, at para. 4.
[33] I note, also, that the court is not obligated to choose between the dates proposed by the parties. Cheng v. Sze, 2021 ONCA 346, 56 R.F.L. (8th) 264, at para. 6.
[34] Further, given the often-polarized nature of the evidence, focused third party evidence, such as affidavits, may be very helpful to the court. In addition, documentary evidence reflecting how the parties have represented themselves to the world may also assist in the court’s assessment.[4]
[35] Finally, while a court must determine a date of separation or valuation date with precision, notwithstanding the wide range of factors and the often-imprecise nature of the separation process, parties may agree to a date that suits their requirements, while litigating remaining issues.[5] . Tsarynny v. Topchiy
In Tsarynny v. Topchiy (Ont CA, 2025) the Ontario Court of Appeal dismissed a family law appeal, here from orders which "fixed the separation date":[18] Determining the date of separation is a question of fact and is entitled to deference.
[19] The application judge correctly instructed herself that the separation date may be established when there is an unequivocal act by the separating spouse indicating that he or she wishes to separate without possibility of reconciliation, relying on O’Brien v. O’Brien, 2013 ONSC 5750, at para. 52. The possibility of reconciliation, in turn, is determined by whether, in light of the intention of the parties, a reasonable person, knowing all the circumstances, would believe that the parties had a prospect of resuming cohabitation. The intention of the parties requires a consideration of a range of objective factors, in addition to the stated intentions of the parties. Drawing from O’Brien, at paras. 54, 61, and Warren v. Warren, 2019 ONSC 1751, at para. 7, the application judge included the following factors:(a) Physical separation, including occupying separate bedrooms, maintaining separate residences and reasons for maintaining separate residences;
(b) Withdrawing from the matrimonial obligation with the intent of destroying the matrimonial consortium;
(c) Presence or absence of sexual intimacy, although acts of intercourse do not necessarily imply periods of cohabitation with reconciliation as their purpose;
(d) Communication between the spouses and discussion of family problems as well as planning for the future;
(e) Presence or absence of joint social activities, celebrating social occasions together, gifts, helping each other through difficult times, and vacations together;
(f) The relationship and conduct of each of them toward members of their respective families and their friends, and how the friends and families behaved towards the parties;
(g) The financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.) and the sharing of assets;
(h) How the parties referred to themselves in documents, including income tax returns, and to friends and families;
(i) Steps taken towards the legal termination of their relationship;
(j) Meal patterns, including eating meals together and performance of household tasks, including washing clothes, cleaning, and shopping; and
(k) Efforts to resume cohabitation (mediation, counselling, property purchase or lease, “meaningful discussions … as to if, how or when their marriage might be put back together”).
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