Under the Same Roof, We Sleep in Separate Rooms but Still Eat Together and Attend Weddings as a Couple — Does Our Separation Date Still Count? Markham Chinese-Speaking Divorce Lawyer: Courts Look at What You Do, Not What You Say

A client asked me: we agreed June 15 was our separation date. Separate bedrooms, no sex life. But we still live under the same roof, our finances aren’t separated, we still eat together, and last week we attended a friend’s wedding together. If this ever ends up in divorce court and he pulls all of that out to say we never separated — does our separation date still count?

Great question. Because there is a real Ontario case, decided by Justice Finlayson, with almost identical facts. The parties spent four days in trial fighting over nothing but the date of separation. Let me walk you through it, because it shows exactly how a judge thinks.

Why the separation date matters so much

The separation date is the foundation of the entire property case. Section 4(1) of Ontario’s Family Law Act says the valuation date is “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.” Your house, savings, and investments all get valued as of that day. Move it two years in either direction and the split can swing by hundreds of thousands.

Spousal support — how much and for how long — turns on the length of the relationship, counted back from the separation date. Child support start dates follow it too.

So the separation date is never “just pick a day.” One practical note: if nothing grew after separation — assets only shrank — then whether the date is a few days earlier or later barely moves the needle on property. But if either side’s assets grew after separation, or parents’ money came in, the date becomes the whole fight.

The case: Taylor v. Oliver, 2022 ONSC 7186

Taylor v. Oliver, 2022 ONSC 7186

Both parties were 55. They’d known each other since age 12, dated in high school, went their separate ways, reconnected in the early 2000s, started living together in 2004, and married on June 30, 2012. Two kids, 17 and 15. He ran his own glass fabrication business; she had worked at Scotiabank and IBM before staying home with the kids after losing her job in 2011.

He said: separation was October 15, 2015. That fall they had a big fight — she wanted to cut back on alcohol and change her diet, thought he drank too much; he felt nagged. After the fight he moved into the spare bedroom and, he claimed, told her in the garage: “I’m done.”

She said: separation was May 1, 2018. That’s when she actually started moving out of the matrimonial home, into the family’s trailer.

In the two and a half years between: separate bedrooms, no sex life — but still under the same roof, still eating together as a family, a 2016 trip to the Dominican Republic together for a family member’s destination wedding, a surprise blue Jeep he bought her in March 2016, tax returns filed as “married” every year through 2017, joint discussions about renovating the house (he texted about building a bridge from the house to the pool; she replied “you’re reading my mind”), and her working unpaid in his shop, having lunch together.

How the judge took his evidence apart: timestamps don’t lie

The brilliant part of this decision is how the judge fact-checked every piece of the husband’s “separation evidence” against timestamps.

His strongest card was a draft separation agreement. He said that within two weeks of the October 2015 fight, the wife left a draft and a letter on his bed, naming October 15, 2015 as the separation date — and that they’d “honoured it as if signed” for two and a half years.

The judge read the draft and found it didn’t add up:

First, it listed the children’s ages as 12 and 9. But in fall 2015, they were 10 and 7. Twelve and nine were their 2017 ages.

Second, it mentioned the blue Jeep. The Jeep wasn’t purchased until March 2016 — it didn’t exist in October 2015.

Third, it described the matrimonial home as jointly owned. The transfer into joint names didn’t happen until March 2018, when they refinanced through a bank for a lower rate. In 2015 it wasn’t joint.

Fourth, the cover letter said “I’ll sell the house myself once I’m licensed in August.” She didn’t start the real estate course until March 2017 and finished in August 2018. In October 2015, she hadn’t even begun.

A document “from October 2015” full of things that only happened between 2016 and 2018. The judge’s conclusion was blunt: she couldn’t have given it to him in 2015. The wife admitted she’d downloaded a template at a library on September 28, 2017 (she had the email to herself to prove it) and delivered it in spring 2018.

Even sharper: the husband insisted he received it in late October 2015. The judge pulled up their texts from October 30, 2015. Her: “How ya doing?” Him: “Better now hearing from my wife. Luv u, see ya soon.” Her: “Luv u back.” The judge noted dryly: this doesn’t sound like two people who just had a separation-triggering fight capped off by a draft separation agreement.

The tax returns: your mouth says separated, your tax form says otherwise

He claimed separation since 2015, but filed as “married” through 2017, only switching to “separated” on his 2018 return. His explanation: his accountant told him to, for income splitting.

The judge didn’t buy it. First, the accountant never testified. Second, it’s hard to believe a professional accountant would advise a client to misrepresent marital status to the CRA. And the judge added: in the husband’s own mind, 2018 was the year things really changed — she’d moved out, and income splitting no longer made sense.

The Jeep, the title transfer, the texts: all evidence of “still living as a couple”

March 2016: he texted that he was coming home early, then sent a photo of a blue Jeep — “U will never get stuck in the driveway any more.” A surprise. He later backtracked, saying it wasn’t a surprise or a gift, just a family vehicle. But the texts from that day showed she was genuinely surprised: “you didn’t have to spend money on me like that.” Title stayed in his name, he paid the expenses until 2018, then transferred it to her. The judge found it was a 2016 gift. Separated people don’t buy their ex a car six months after “separating.”

March 2018: together they transferred the matrimonial home into joint names and refinanced with a bank at a lower rate. The judge’s logic: if they’d been separated since 2015, why would she agree to convert her solely-owned parcel into joint names? Why didn’t the real estate lawyer, acting for both of them, flag the separation? This was plainly two people making a financial decision for the family’s benefit. The separation hadn’t happened yet.

On texts: his lawyer did prove the lovey-dovey messages stopped after October 2015. She conceded: “it was a little tense. But we were still married.” But the judge pointed out the counter-evidence: “Luv daddy” in March 2016, a birthday cake in November 2015, skating together around Valentine’s 2016. Each item could be read either way — but in the totality of the evidence, not enough to prove a 2015 separation.

The judge’s measuring stick: seven factors

The judge applied the seven factors from Oswell v. Oswell (1990, Weiler J.), the leading case on whether spouses are separated under the same roof:

Physical separation — separate bedrooms count, but it’s one of seven; Whether one or both withdrew from matrimonial obligations, intending to end the marriage; Sexual relations — not determinative; Whether they still discuss family problems; How they communicate — do the texts sound like spouses or roommates; Joint social activities, and whether the meal pattern changed; How household tasks are divided — measured against what was normal during the marriage, not against some ideal.

Plus two more: the court looks at true intent, not stated intent; and whether the person arranged their affairs like a separated person (separate accounts, tax status).

The judge also quoted Chan v. Chan: “One cannot separate in secret.” Separation doesn’t have to be mutual — but you can’t separate in your head, say nothing, change nothing, and expect the court to go along. For two and a half years he never discussed separation with her, never told the children, never separated the finances, never saw a lawyer. The judge asked: how could she possibly have known the marriage was over?

One line worth savouring: the parties had treated each other respectfully throughout, and the judge observed that this very decency “likely contributed to the uncertainty about when they actually separated.” The more amicable the split, the harder the date is to pin down.

The ruling: May 1, 2018

The judge’s summary (paras 149–151): apart from the spare bedroom and the end of their sex life, the husband had zero evidence of preparing for separation before 2018 — no lawyer, no conversation with her, no talk with the kids, no financial steps. Meanwhile 2015–2018 was full of specific acts of an ongoing relationship: married tax filings, the Jeep, the joint title transfer.

Around May 1, 2018, by contrast, she moved out, delivered the draft agreement, talked to the children, switched her tax filing to separated, changed the financial arrangements, and he started paying support. Held: separated May 1, 2018, with no reasonable prospect of resuming cohabitation.

The judge also named the incentives openly: a later date meant more property growth and more (and longer) support for her; an earlier date saved him a fortune. Courts decide on objective evidence, not on who sounds more sympathetic.

Back to my client’s question: does your separation date hold?

Run your facts through the same ruler:

In your favour: separate bedrooms, no sex life.

But one thing needs saying plainly: an oral agreement on June 15 counts for almost nothing. Words leave no evidence. If one side later says “I never said that” or “I was just talking,” the other side can’t prove a thing — and that’s exactly where future disputes come from. Courts rule on evidence, not memories.

Written words are a different story: a signed separation agreement, or at minimum texts or emails in black and white, and a judge will give them weight. In Taylor, the wife had written a date in her draft — but it was her own unsigned draft, and the judge didn’t treat it as decisive either. What the judge actually relied on: she moved out, told the kids, filed taxes as separated, split the finances. Conduct — not words on paper, let alone words spoken aloud.

Against you: still under the same roof, finances still joint, still eating together, still showing up at friends’ weddings as a couple. To a judge, that’s all evidence of “still living as spouses.” The husband in Taylor lost on exactly these points: eating together, the wedding trip, joint tax filings, joint financial decisions. None of them fatal alone — together, they meant “not separated.”

So the practical advice is one sentence: if you want the separation date to hold up, live like you’re separated.

Split the finances. File taxes as separated. Stop appearing at social events as a couple — a friend’s wedding you can skip, skip; if you must go, know it’s ammunition for the other side later. Tell the children. Keep your records. Saying “we’re separated” while living like spouses won’t convince a judge. The husband in Taylor slept in the spare bedroom for two and a half years and still lost.

And conversely: if nothing grew after separation — assets only shrank — then fighting over the date isn’t worth much. Pick your battles. Don’t spend four days in trial over a point of pride.

The separation date decides the valuation date, the support clock, and where child support starts. Living apart under the same roof is possible — but every step has to look like separation. Book an initial consultation (30 minutes, $220+HST). Call 647-930-6688.

This is general legal information only. Not legal advice. No lawyer-client relationship.