• by David Frenkel
Originally published at Canadian Lawyer Magazine
Analysing the case law for patterns can help avoid unnecessary conflict and litigation
Family lawyers review many facts of a client’s relationship that seemingly are inconsequential but still need to be analyzed to see if and how they affect a client’s case.
One area of fact is how a client’s relationship ended. While benign on the surface, disagreements on these types of facts can result in much unnecessary litigation.
Believe it or not, there have been hundreds of court decisions over the last few decades where judges had to decide when a couple separated. People went to court and spent tens of thousands of dollars for a judge to determine whether a relationship broke down on a Monday or a Friday. June or July. 2017 or 2022.
And why so much litigation on such a trivial issue? The answer is not so simple.
Let’s start with an example. If Mr. Depp bought a case of Jack Daniels on credit a month before he separated, that debt would have been considered a liability that Ms. Heard would have had to share in Ontario family law. If he bought the case after they separated, well, that is a typical Wednesday night with its usual consequences.
Or let’s suppose Kim and Kanye separated not while living in their LA family home but after they moved into a Wyoming ranch while renting out their mansion as an Airbnb. Family law tells us that their former home loses its matrimonial home designation just because they separated at their Wyoming residence. Go figure.
There are many other examples, but the critical point is that there are significant financial consequences when a couple separates; therefore, dates matter.
Accordingly, legislation and lots of case law address the separation date issue. And you would think that this one-two punch would be enough to help parties avoid court and solve their separation date riddles on their own.
But unfortunately, parties continue to go to court in Canada year after year with a steady stream of released decisions that provide updated summaries of separation date principles. This case law, in turn, requires family lawyers to be aware of the latest iteration of the law on this topic while also being slightly uncertain about how to apply the principles adequately.
The reason for this uncertainty is that although some cases have been more helpful than others, overall, determining a separation date is like buying and selling today on the stock market. You not only need the data, but you also need a financial guide to lead you through all the turmoil.
In response to this missing separation date guide in family law literature, my colleague Yunjae Kim and I tackled the problem head-on, sifted through mounds of jurisprudence and developed a resource that we hope will be helpful for our colleagues. We published our analysis of the law and a proposed guide in the latest Canadian Family Law Quarterly publication with the article titled: Separation Date Principles and Assessment Guide (40 C.F.L.Q. 335).
In our paper, we analyzed the separation date cases over several decades and compiled legal principles that kept coming up repeatedly in different scenarios.
We reviewed and compiled all the separation date indicia as found in the case law but then asked ourselves, can these indicia be organized more practically when applying them to future cases? Our suggested method resulted in a sequence that aligns with how a relationship typically breaks down.
The sequence started with sex. We found that regular sexual intimacy is the first thing that stops occurring when a relationship begins to fall apart. Being intimate with a romantic partner depends on trust, desire, and personal connection. Once that connection starts to deteriorate, the cessation of intimacy soon follows. Parties typically stop having sex months, if not years, before they officially separate.
We then went to another indicia of separation and analyzed where that step fits in the sequence of a relationship breakdown. We continued until we studied all the indicia using a systematic approach while ensuring the chronology was flexible enough to encompass different types of relationships.
We were mindful that some relationships had individual chronologies and did not share certain factors with other connections. Love unravels at various seams, at unique times and in unpredictable ways.
And after our analysis, we needed to ensure we caught all the significant separation date indicia and organized them into coherent groups that made sense.
The first group in our guide was the couple’s “relationship, communication and intimacy.” Questions in this category included when the couple stopped sexual relations, when they stopped sharing a bedroom, going on dates, celebrating anniversaries, etc.
The second group was “household and family.” We found that this section included matters that were still a private part of the couple’s lives but not as intimate as the first. The examples in this group were generally more known to the outside world. Questions in this category included when the couple stopped performing household chores, helping each other during difficult times, and so on.
The remaining groups included “financial affairs,” “activities with the public,” “separate residences,” and “additional factors.”
All in all, we found the separation date guide helpful when addressing the separation date issue as it provided direction, purpose, and clarity. We also found that the guide allowed us to analyze the separation date factors in a more comprehensive and organized way, ultimately leading to more definitive conclusions.
We hope that such outcomes will increase as more and more lawyers use the guide and thus reduce unnecessary conflict and avoidable litigation. However, when the opposing party or counsel is not reasonable, the guide can be used as a helpful tool in advocacy and litigation whenever necessary.