When will a court certify that two spouses began living separate and apart within the meaning of the Divorce Act?

In Al-Sajee v. Tawfic, 2019 ONSC 3857, Chappel J. set out, at para. 26, the criteria for a determination of when two spouses began living “separate and apart” within the meaning of the Divorce Act. Those criteria may be summarized as follows: • Ascertaining when spouses begin to live separate and apart requires a global analysis of the unique realities of their relationship, routines, social and other habits and practices and living arrangements over time. No one factor will be determinative. In deciding how much weight, if any, to give to any particular factor, the court must carefully assess whether there have been any real changes in regard to that factor since the parties were clearly together in a conjugal relationship; • There are two aspects to spouses living separate and apart: (1) they must live apart from each other, and (2) there must be an intention on the part of one or both of them to live separate and apart from the other; • To live “apart” requires a physical separation between the parties, meaning that they cannot be cohabiting in a conjugal relationship, although they may be living separate and apart under the same roof if there is no conjugal relationship; • The fact that the spouses have two residences and spend significant periods apart in the two homes is not determinative of whether they are living separate and apart. Spouses in these circumstances will only be considered to be living separate and apart if at least one of them intends to end the marital relationship. Where the parties live primarily in separate residences, the court must examine all of the other circumstances surrounding their relationship to determine whether they were, in fact, living separate and apart; • In order to establish the requisite intent to live separate and apart, there must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of repudiating the matrimonial relationship; and • The law does not require a meeting of the minds regarding the intention to separate; a physical separation, coupled with the intention of one party to live separate and apart, is sufficient.