In family law, few issues spark as much debate as the determination of a couple’s separation date. This pivotal moment shapes everything from divorce eligibility to spousal support and property division. The Ontario Court of Appeal’s decision in Kassabian v. Marcarian (2025 ONCA 239) brings clarity to this murky terrain, offering a consolidated framework that family law practitioners can rely on.
The Case at a Glance
The dispute in Kassabian v. Marcarian centered on when Karen Kassabian and Berge Marcarian parted ways. The husband pointed to December 10, 2014, when they stopped sharing a bedroom, as the separation date. The wife, however, pegged it to May 16, 2021, when she explicitly voiced—and later documented—her intent to end the marriage. The trial judge sided with the wife, ruling that the couple “were content to have a different marriage than the one that they had hoped for,” and while it was “not a marriage that fulfilled expectations,” it nonetheless continued until May 16, 2021 [para. 8]. The Court of Appeal upheld this finding and, in doing so, delivered a roadmap for determining separation dates.
Why Separation Dates Matter
The separation date isn’t just a technicality—it’s a linchpin in family law proceedings in Ontario. The Court highlighted three key contexts where it plays a pivotal role [para. 12]:
- Divorce under the Divorce Act: To file for divorce, spouses must live “separate and apart” for at least one year. The date of separation sets the clock ticking on the process.
- Spousal Support: Under both the Divorce Act and the Family Law Act, the duration of cohabitation influences support entitlements. A longer marriage might mean more support; a shorter one, less.
- Equalization under the Family Law Act: The “valuation date”—when spouses separate with no reasonable prospect of reuniting—fixes the snapshot for dividing net family property. It also triggers the six-year limitation period for equalization claims under s. 7(3) of the Family Law Act [para. 18].
Here’s the catch: the Family Law Act‘s valuation date demands more than just living apart. There must be “no reasonable prospect that they will resume cohabitation” [para. 15]—a higher bar than the Divorce Act‘s requirement to grant the divorce. 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” [para. 17, citing Al-Sajee v. Tawfic, 2019 ONSC 3857, 27 R.F.L. (8th) 269.
The Five-Factor Framework
The Court of Appeal didn’t reinvent the wheel—it polished it. Drawing on past cases, it distilled the analysis into five key categories [para. 24]:
- Nature of the Relationship: Are the spouses under one roof or apart? Is there intimacy, shared chores, or joint social outings? The day-to-day reality matters.
- Financial Arrangements: Do they still share bank accounts or split bills? Have they started dividing assets or tweaking beneficiary designations? Money talks.
- Interaction with Third Parties: How do they present themselves to the world— social media posts, or chats with financial advisors? Perception can reflect reality.
- Formal Steps to End the Marriage: Have they retained lawyers, drafted a separation agreement, or tried mediation? These moves signal intent.
- Steps to Resume Cohabitation: Are they in couples therapy or making joint investments? Efforts to reconcile can muddy the waters.
No single factor seals the deal. It’s a balancing act, tailored to each couple’s unique story.
Guiding Principles: The Court’s Compass
To keep the analysis on track, the Court laid out several guiding principles [para. 31]:
- True Intent Trumps Stated Intent: What spouses say about separating matters less than what they do. Courts dig for the “true intent” rather than the “stated intent” [para. 31(a)].
- Separation Can Be Unilateral: One spouse can end the marriage—no mutual agreement required. As the Court stated, “Continuation of a relationship requires two people. Either can end a relationship without the consent of the other” [para. 31(b), citing Strobele v. Strobele].
- Clear Communication Is Key: Secret intentions don’t count. The separating spouse must “take some definite steps to notify the world at large of [their] intentions” [para. 31(c), citing Letford v. Letford]. One party cannot separate “in secret” [para. 31(c), citing Chan v. Chan].
- Every Marriage Is Different; Context is everything. “Weighing the incidents of separation requires a careful assessment of the underlying characteristics of the marriage” [para. 31(d)]. A cookie-cutter approach to all situations is not appropriate.
- Separation Is a Process: It’s rarely a clean break—more often, it’s a slow unraveling. In a memorable metaphor cited by the Court: “Marriages are like balloons. Sometimes they deflate immediately with a single puncture. But often the air escapes slowly as one or both parties withdraw physically, emotionally, and financially” [para. 31(e), fn. 3, citing Cheng v. Sze].
- No Rigid Checklist: The five factors guide, but don’t dictate. “No one factor is determinative, and any factor considered must be weighed in the overall assessment of the uniqueness of each relationship” [para. 31(f)].
- Objectivity Rules: Courts step back, weigh the evidence, and pinpoint when the marriage truly fell apart. The judicial assessment is “necessarily objective” [para. 31(g)].
These principles ensure the framework bends without breaking, adapting to the messiness of human relationships.
Practical Tips for Practitioners
Kassabian isn’t a legal treatise—it’s a playbook. Here’s how family law practitioners can put it to work:
- Dig for Contemporaneous Evidence: Texts, emails, and bank statements can anchor a client’s timeline. The more immediate, the better. The Court noted that contemporaneous communication is particularly relevant—such as when the husband didn’t dispute the wife’s claimed date in his email response [para. 40(a)].
- Tap Third-Party Voices: “Given the often-polarized nature of the evidence, focused third party evidence, such as affidavits, may be very helpful to the court” [para. 34]. In Kassabian, the respondent tendered seven third-party affidavits that bolstered her case [para. 7].
- Scour Institutional Records: Tax returns, loan applications, or insurance policies often tell a clearer story than memory alone. The Court highlighted that the parties continued to identify as “married” on their tax returns [para. 40(b)].
- Track the Money: A sudden split in joint accounts or asset shuffling can mark the separation line. The Court noted that in Kassabian, “No steps were taken to divide assets or seek legal advice about how to do so” [para. 40(c)].
- Weigh Bifurcation: When the date is in dispute, a standalone trial on that issue can save time and money down the road. The Court affirmed that “addressing narrow issues such as the date of separation efficiently and proportionately can only assist in the overall effectiveness of moving family law cases to resolution” [para. 46].
One caveat: financial stakes—like looming limitation periods—don’t decide the date, but they can color credibility.
Quick Reference: The Five Factors
| Factor | What to Look For |
| Nature of the Relationship | Living arrangements, intimacy, daily routines |
| Financial Arrangements | Joint accounts, expense sharing, asset division |
| Interaction with Third Parties | Public perception, tax filings, social media |
| Formal Steps to End Marriage | Legal consultations, agreements, mediation |
| Steps to Resume Cohabitation | Therapy, joint ventures, reconciliation efforts |
Conclusion
Kassabian v. Marcarian is a game-changer for Ontario family law. By streamlining the approach to separation dates, it hands practitioners a sharper tool for advising clients and arguing cases.
As Justice Madsen eloquently notes, “separation for many couples is best described as a process rather than an event” [para. 31(e)]. Yet the law requires precision—a specific date—for valuation and equalization purposes. This tension necessitates a nuanced, contextual approach.
Given that separation date determinations are “necessarily… a determination of fact and credibility falling squarely within the province of the trial judge” [para. 32], practitioners must build cases that emphasize contemporaneous documentation, third-party evidence, and a coherent narrative that accounts for the unique characteristics of their client’s relationship.
Master this framework, gather the right evidence, and you’ll be better equipped to tackle one of family law’s thorniest questions: when did it really end?
Let’s continue to elevate the practice of family law in Ontario!
Cheryl Goldhart is a Mediator and Arbitrator who can make a difference in resolving your family disputes.
- Four Decades of Specialized Family Law Practice: Cheryl brings a wealth of experience spanning nearly 40 years dedicated exclusively to family law.
- Masters Degree in Counselling: Her Masters Degree in Counselling informs her uniquely empathetic approach to each case.
- Certified Family Law Specialist: The Law Society of Ontario has certified Cheryl as a Family Law Specialist, recognizing her expertise in the area.
- Accreditation as a Mediator by the OAFM: Cheryl’s expertise is reflected in her accreditation from the Ontario Association for Family Mediation.
- Designated ADR Professional by Ontario’s ADR Institute: As a highly respected arbitrator, Cheryl’s designation reflects her recognized expertise in family law arbitration.
- Recipient of Numerous Awards and Honors: Among Cheryl’s many awards, honours and accolades is the prestigious Award for Excellence in Family Law from the Ontario Bar Association.
Legal Disclaimer: See Privacy Policy
Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.
