What is my date of Separation? Evidentiary Sources to Consider
Topic: Family Law October 4, 2022 by Low Murchison Radnoff
What is my date of Separation? Evidentiary Sources to Consider
At some point in an initial consultation with a family law lawyer, the discussion will turn to the date of separation.
The date of separation is relevant to many family law issues, spousal support, property division and divorce to name the main ones.
Perhaps not surprisingly the date of separation is not always self-evident, and like many things in family law is open to disagreement between the parties.
That disagreement between the parties has spilled over to the courts. David Frenkel and Yunjae Kim in their recent paper Separation Date Principles and Assessment Guide published in Canadian Family Law Quarterly have helpfully reviewed this caselaw and produced an excellent summary of the jurisprudence, the evidence considered and a separation date assessment guide. This paper is an excellent resource for any one seeking to grapple with the question: What is the date of separation?
For the purposes of this blog post, however, I want to highlight what evidence that a court may consider in determining competing dates. This may be helpful to keep in mind in weighing whether or how one may prove a date of separation:
- Letters to government entities, e.g. CRA
- Letter from Family Law lawyer
- Separation agreement
- Residential tenancy agreement, e.g. one spouse only as a tenant
- Emails between spouses
- Calendars / daytimers
- Photos / pictures
- Social media
- Anniversary presents
- Valentine’s Day e.g. plans, activities, gifts and whether a pattern changed or continued
- Birthday cards, e.g. between spouses
- Gifts
- Invitations – e.g. on behalf of both parties for a child’s first communion
- Obituary Notice – e.g. are the parties referred to as spouses?
- Text messages
- Phone calls / records
- Debit/credit card transactions
- Loan applications
- Evidence from the person in the affair
- Marriage counsellor
- Mediator
- Children’s Aid Society case worker
- Realtor
- Family doctor
- Support worker
- Lawyer preparing wills
- Friends / family
- Neighbours
- Adult children
While not all of the above sources may be relevant to your particular situation, the list prepared by Frenkel and Kim provides a comprehensive starting point to consider.
As a bonus in their article, caselaw is cited as an example of each of the above sources. Certainly the article is a worthwhile read and reference guide to keep on hand.
Having trouble making headway as to what is your date of separation? The Family Law lawyers at LMR would be happy to assist.
[ssba]