Court File and Parties

Court File No.: FC 808/19 Date: 2023/03/13 Ontario Superior Court of Justice – Family Court

Between: Zarife Elnazali, Applicant And: Ezzat Mohamed Elnazali, Respondent

Counsel: Alice H. Van Deven, for the Applicant Katie Warwick, for the Respondent

Heard: March 3, 2023, by videoconference

Before: Tobin J.

Introduction

[1] The issue on this focused summary hearing is determining the date the parties separated.

[2] The applicant wife claims the parties separated on January 1, 2015.

[3] The respondent husband claims that the separation occurred almost four years later in December 2018.

[4] The date of separation matters in this case because it will affect the amount of retroactive child support and spousal support to be claimed and the calculation of the parties’ respective net family properties.

[5] On August 4, 2022, Hassan J. directed that this focused summary hearing relating solely to the issue of date of separation take place.

[6] The hearing was conducted virtually. Two Arabic – English interpreters attended.

Evidence

[7] The hearing proceeded on affidavit evidence only. Neither party conducted cross-examinations on the affidavits filed.

[8] The wife raised a preliminary issue. She asked that an exhibit contained in the husband’s affidavit sworn February 27, 2023 be struck. The exhibit was a video, of an incident that occurred on February 20, 2023 and captured on the phone of one of the parties’ children. The content of the video had nothing to do with the date the parties separated. The husband wanted the court to consider the video because it contradicted an assertion made by the wife in her affidavit.

[9] The video was admitted solely to address the issue of credibility.

[10] This was not a case where the court was asked to determine the date the parties separated based on a statement of agreed facts. The parties disagreed about much of the evidence filed. Findings of credibility are difficult to make where there are only untested affidavits. However, if a party provides inconsistent, verifiably incorrect, or false affidavit evidence, then that party’s credibility can become suspect.

[11] In her reply affidavit the wife provided a detailed and coherent explanation of the challenged evidence and why it was originally given. With this explanation I am satisfied that the wife’s credibility was not impaired.

[12] In this case there is uncontradicted evidence on a number of essential facts and upon which a determination of the date of separation can be made.

[13] This was a focused summary hearing where the evidence relied upon had to be trial worthy.

Facts

[14] The parties married in Lebanon on September 20, 1989. This is the year the wife arrived in Canada. The husband had immigrated the year before.

[15] The parties are the parents of nine children, who now range in ages from 31 to 11.

[16] The matrimonial home is located in London, Ontario. Six of the nine children still reside there with the wife.

[17] There was a deterioration in the parties’ relationship which led to the husband leaving the matrimonial home on January 1, 2015. In December 2014, the wife, who was suspicious about the husband’s fidelity, told the husband that if he was not going to change, she would leave. He said he was not going to change. As a result, the wife began to look for a place to live. Eventually, the husband conceded to the wife that she should remain in the matrimonial home with the children, and he would move out. This he did on January 1, 2015. He began living at the home of a neighbour.

[18] The husband denies any infidelity. He does acknowledge that he left the matrimonial home on January 1, 2015. It is his evidence that the parties had an argument and she “temporarily kicked” him out of the house. He acknowledges living temporarily with the neighbour.

[19] The husband’s evidence is that the parties “eventually reconciled and resumed living together between January 1, 2015 and December 2018 in the matrimonial home.” This is disputed by the wife. It is her evidence that there was no reconciliation nor did the husband ever return to live at the matrimonial home.

[20] It is the husband’s evidence that the parties remained together until December 2018. Further, it is his evidence that in mid-2018, he went to Lebanon after he and the wife “got into another verbal altercation.” While in Lebanon, his family encouraged him to end his relationship with the wife. While still in Lebanon, he contacted the wife in December 2018 and told her he could no longer live with her anymore. Then one month later, in January 2019, he married another woman in a religious ceremony in Lebanon.

[21] I will consider this evidence along with the other evidence of the parties regarding the period between January 1, 2015, and December 2018, in my analysis.

Legal Considerations

[22] The wife’s application was brought under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), for a divorce and corollary relief. It was also brought under the Family Law Act, R.S.O. 1990, c. F.3, for an equalization of the parties’ respective net family properties. Both Acts require a consideration of the date the parties separated.

[23] Under the Divorce Act, a divorce may be granted if there is a breakdown of the marriage: s. 8(1).

[24] A breakdown of the marriage can occur where spouses have lived separate and apart for at least one year immediately proceeding the determination of the divorce case: s. 8(2).

[25] At s. 8(3), the Divorce Act provides that spouses are deemed to have lived separate and apart during any period which (1) they lived apart and (2) either of them has the intention to live separate and apart from the other.

[26] The intention to separate can be a unilateral one, even over the objections of the other party. Once a party has decided to separate and acts on this decision, the other party has little, if any, ability to stop the process or object.

[27] Under the Family Law Act, the equalization calculation depends upon the determination of the valuation date: s. 4(1). Valuation date is defined, in part, as the date the spouses separate and there is no reasonable prospect that they will resume cohabitation. Most often, these two events happen at the same time. However, where there is a dispute about when the valuation date occurred, it most often arises because of the financial consequences arising from the choice: Jayawickrema v. Jayawickrema, 2020 ONSC 2492, at para. 22.

[28] Both parties have the onus of establishing on the balance of probabilities the date of separation they propose: Bouffard v. Bouffard, 2020 ONSC 3079, at para. 39.

[29] In McBennett v. Danis, 2021 ONSC 3610, at para. 54, Chappel J. noted that with respect to

[a]scertaining when parties cohabited and when they began to live separate and apart for the purposes of divorce entitlement and spousal support requires a careful analysis of the unique realities of the parties' relationship, routines, social and other habits and practices and living arrangements over time. In deciding how much weight, if any, to give to any specific factors, the court must carefully assess whether there have been any real changes in regard to those factors since the parties were clearly together in a conjugal relationship. In addition, because of the particular dynamics of each relationship, no single consideration will be determinative of whether spouses are cohabiting or living separate and apart; a global analysis and weighing of all factors is required.

Analysis

i) Intention to live apart

[30] I find that the wife intended to live separate and part from the husband as of January 1, 2015.

[31] It is on that day the husband left the matrimonial home. The wife’s evidence is that he did not ever return to live at the matrimonial home. This is consistent with the unchallenged evidence that she changed the locks when he left and disposed of those personal items he left behind.

[32] The wife’s evidence was corroborated by the parties’ now 29-year-old child, Manal who observed that the husband did move out on January 1, 2015. She was living in the matrimonial home at the time and remained living there until August 2020 when she married. She was also aware that when the father was in Canada, he lived at the home of a neighbour. She observed that three of her siblings would visit the father at the neighbour’s home.

[33] The father asks the court to discount Manal’s evidence on the basis that she “sided with” the wife against him. While Manal may be supportive of the wife, claiming she is biased is not sufficient in this case to disregard her evidence. Her evidence was detailed and relevant. Manal’s evidence corroborates that of the wife. She had the opportunity to observe the events she describes. The weight accorded to her evidence reflects that she is not a disinterested person and that her evidence is but one part of the total evidentiary record to be considered.

[34] The father states that the parties eventually reconciled and resumed living together “between January 1, 2015 and December 2018 in the matrimonial home.”

[35] This statement is contradicted or called into question by the father’s other evidence:

• Sometime after January 1, 2015, the father tried to return to the matrimonial home but was told by the wife that he was not allowed in the house. This occurred on a number of occasions.
• The husband spent lengthy periods in Lebanon. His evidence is that he would go for two or three months per year. His evidence is also that he left for Lebanon in the spring of 2018. There is no evidence that he returned before marrying again.
• When he tried to spend time with the children the mother would often prevent him from doing so or tell him that he was not allowed to see them.
• He maintained the matrimonial home as his address but often learn about outstanding payments after receiving telephone calls regarding them.

[36] The husband married in January 2019. He did not explain when this new relationship began. An explanation of when this other relationship began, and how he arranged to be married within one month of claiming to end his relationship with the wife should have been provided. This explanation would be necessary to understand what does not appear to be plausible or consistent with the husband’s assertion that the parties separated only in December 2018.

[37] The husband’s evidence was deficient in that he did not give specifics of when he returned to the home, or for how long.

[38] The husband’s evidence that “our children were aware that the applicant kicked me out on January 1, 2015 but they did not view this as a separation” is not admissible evidence. It is at best hearsay evidence without any basis offered for its admissibility. This is not trial worthy evidence.

[39] Corroborative evidence of the wife’s intention to separate from the husband is found in her income tax assessments from 2015 to and including 2018. In each assessment, the wife’s marital status is shown as separated.

[40] The 2015 assessment filed March 24, 2016, is close in time to the date of separation advanced by her. This evidence is significant and is more consistent with the wife’s assertion about the date of separation than with the husband’s.

[41] The wife maintained her status as separated in her tax filings throughout the period in dispute.

[42] The husband’s evidence is that he used the matrimonial home address on his tax filings until December 2018. He also represented himself to be married in his tax filings. This evidence is equivocal when compared to the wife’s income tax evidence. The parties were still married. Also, when mail did come to the matrimonial home for the husband, the wife took it to the neighbour’s home.

ii) Intimate relations and affection shown

[43] Both parties agree that they were not intimate at least since January 1, 2015. The father’s evidence is that intimacy ended shortly after the parties’ youngest child in 2011.

[44] This consideration, raised by both parties, is not a helpful one in this case. In Button v. Button, [2000] O.J. No. 1291, at para. 79, Kitely J. observed:

The sexual relationship between spouses is peculiar to that couple. One must assess the significance of the end of sexual intimacy in that context of the frequency and importance of sexual intimacy in that relationship.

[45] There is conflicting evidence regarding the parties being affectionate with one another during the period in dispute. This is also the case regarding whether they shared family meals, attended birthday celebrations, and participated together in religious holidays. The parties also dispute whether they continued to vacation together after January 1, 2015. In denying this ongoing contact, the wife’s evidence was much more specific than was the husband’s.

iii) Economic activity and household responsibility

[46] The wife’s uncontradicted evidence is that after January 1, 2015, the husband did not share household tasks. However, it is not possible to tell whether this was a change in circumstances. There is no evidence of what he contributed to in this regard before that date.

[47] There is a dispute in the evidence regarding the economic support the husband provided after January 1, 2015. The husband’s evidence is that he used funds from a home equity loan to purchase supplies, pay taxes and utilities with respect to the home. The wife concedes only that he paid the municipal taxes but no other expenses. Neither party provided corroborating documents showing who paid which expenses.

[48] In 2016, the parties secured a $120,000 line of credit with a mortgage on the matrimonial home. This evidence too, is equivocal in attempting to determine when the parties separated. On its own, this evidence does not tend to support the parties being together. The matrimonial home was registered in the husband’s name. He needed the wife’s consent to obtain the loan and give a mortgage on the matrimonial home. The wife’s evidence is that according to the husband he wanted the loan to renovate the house. She signed because she felt she had no choice, otherwise the husband would sell the home. The husband denies coercing the wife to sign the mortgage and take out the loan.

[49] I also take into account that the husband withdrew almost the entirety of the available line of credit funds and deposited them into his own account. The wife received no monies from this secure line of credit. The husband claims that he used the monies from the line of credit to make improvements to the home. However, the wife denies the improvements he claims were made. For example, according to the wife, the driveway repair claimed by the husband occurred many years earlier.

Conclusion

[50] Based on the foregoing considerations, I find that the wife evidenced her intention to separate from the husband on January 1, 2015 when he left the matrimonial home and she acted on that intention.

[51] Taking all of these factors into account, I find that on the record before the court, it is the wife who has met her onus of demonstrating that on the balance of probabilities, the date the parties separated was January 1, 2015. There was an internal consistency and logical flow to the wife’s evidence. The husband did not meet his onus.

Order

[52] There shall be a finding that for the purposes of the Divorce Act, and the Family Law Act, the parties separated on January 1, 2015.

Costs

[53] If the parties are not able to resolve the issue of costs, the wife may make written submissions within 10 days of the release of these reasons. The husband shall have 10 days after the receipt of the wife’s submissions to respond. The submissions shall be no more than three pages, double-spaced, and a minimum of 12-point font together with any offers to settle and a bill of costs. The party opposing a claim for costs shall include in their submissions, documentation showing their own fees and expenses: see Family Law Rules, r. 24(12.2).

“Justice B. Tobin” Released: March 13, 2023