The decision to separate often involves significant contemplation that can result in an individual changing their mind on what to do. Such contemplation is familiar to Kimberly Buffington-Quaid, who is now filing for separation only months after calling off her divorce from actor Dennis Quaid.
The date of separation is a legal term, which is an important concept for individuals considering and choosing separation.
In Canada, despite the fact that there are other avenues for obtaining a divorce, the most common and often least contentious method, is divorce as a result of one year of separation. Accordingly, the date of separation starts the clock ticking on when the parties are eligible for divorce.
In this regard, the parties must not act as, nor hold themselves out to be, a couple. While the parties may still cohabitate, they must be living completely separate lives in all other ways.
Since the law is interested in promoting reconciliation where possible, s.8(3) of the Divorce Act sets out an exception whereby, if the parties unsuccessfully attempt to reconcile for 90 days or less, the clock will not stop ticking on the year timeline.
Unfortunately, however it has been six months since Buffington-Quaid initially filed for divorce, and she presumably could not take advantage of the 90-day exception.
The date of separation is also relevant in Ontario, for the purpose of assessing the division of marital property. In this context, the date of separation is referred to as the valuation date.
According to the Family Law Act, the valuation date is defined as the earliest of the following dates:
- The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
- The date the divorce is granted.
- The date the marriage is declared a nullity.
- The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.
- The date before the date on which one of the spouses dies leaving the other spouse surviving.
In Ontario, the valuation date determines the date at which the value of the parties' marital property, is subject to division (save and except for relevant exclusions and deductions). Therefore, Buffington-Quaid's decision to return to her husband for the six month period, essentially set back the date at which the value of their assets and liabilities may be divided.
While deciding the status of a marriage should not be a rushed decision, those in the same position as Buffington-Quaid should be mindful of the implications associated with reconsidering their separation.