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When parties separate, they often do not agree upon the date in which they began living separate and apart.  One party believes it was a certain date and the other believes it was a different date.  This date must be determined in order to resolve issues between the parties. 

Molodowich v. Penttinen is the leading case on determining whether parties are living separate and apart. Molodowich has been referred to in family law cases across Canada.

Molodowich lists the principles that a court will take into consideration when determining whether parties are cohabiting or not. These principles are also inquiries that counsel must answer in order to make a successful argument.

To determine whether spouses were separated at a point in time, the court will examine the nature of the relationship using the following factors:

1. Do the parties maintain separate residences?

2. If so, what is the reason for maintaining separate residences?

3. Do they eat meals together?

4. Do they perform services for one another?

5. Are there personal items at the other parties’ residence?

6. Do they attend social functions together?

7. Do they celebrate special occasions together?

8. Do they help each other during difficult times?

9. Are they sexually intimate?

10. Do they maintain fidelity to one another?

11. Do they financially support each other?

12. Do they share the use of their assets?

13. How are the parties viewed by third parties?

14. How do the parties refer to themselves in documents such as income tax returns and Wills?

This list is by no means exhaustive, but is a comprehensive and useful checklist that will aid the court in determining the question of whether the parties were cohabiting. Corroboration of the answers is also a key component to a successful argument as it helps the court to settle the issue without the uncertainty of “he said/she said” evidence.

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