Introduction

[1] Often one of the most problematical issues in a matrimonial proceeding is when cohabitation began and when it ceased. Those dates are often a difficult target to hit, not only for the courts, but also for the parties. That is largely because cohabitation and separation are often the products of a sometimes lengthy process, one integrative, the other destructive. And often the parties themselves are unsure as to exactly when they began to live together, or when a relationship ended.

[2] In family law, however, these questions loom large because so much rests on them. Entitlement and quantum of spousal support under the Family Law Act[^1] and the Spousal Support Advisory Guidelines depends largely on the length of cohabitation.[^2] As well, equalization of property also rests on when a marriage ends; the court needs to determine the valuation date under the Family Law Act for property valuation purposes. A divorce based upon separation cannot be obtained unless a party can prove that a separation has taken place.

[3] This marriage was, by any measure, short; the parties agree that they married on May 12, 2006. Because of this, the Applicant, Philip O’Brien requests an unequal division of net family property and resists the claim of the Respondent, Galina O’Brien, for spousal support. As with other cases, the length of cohabitation is therefore important in the present case. What is unique here, however, is the degree of disagreement between the parties. In most cases, the parties can agree on one date or the other; here the parties cannot even agree as to the dates of either cohabitation or separation. Remarkably, the Respondent, Galina O'Brien does not even acknowledge that the parties have separated even though they participated in a two day trial regarding that exact issue.

[4] By order of McKelvey J. dated October 30, 2012, the proceedings were bifurcated, and only the issues of the dates of cohabitation and separation were addressed during this trial. As well, Mr. Isenberg has requested a divorce, as his client wishes exclusive possession of the matrimonial home at this point in time. He also asks for costs; he states that the Respondent is divesting herself of assets and that he requires security for costs as she is presently working outside of the jurisdiction.

[5] It is apparent to me that Ms. O'Brien has resisted this matter proceeding. There is ample evidence that she avoided service of process issued on behalf of the Applicant. She requested an adjournment of the trial; she withdrew that request when Mr. O'Brien’s solicitor requested costs thrown away in the estimated amount of $4,500.

[6] In her written submissions, Ms. O'Brien has now requested a new trial and that she be permitted to call a number of witnesses to support her position that no separation has yet occurred.[^3] I presume that she is, in effect, requesting an opportunity to re-open her case in order to call more evidence notwithstanding the fact that she closed her case on May 22, 2013 and the Applicant elected not to call reply evidence. Included in the witnesses she now wishes to call are her daughter and former counsel for the Applicant. She also submitted that she did not have adequate time to prepare for trial because of her work in Salt Lake City.

[7] I decline to exercise my discretion to allow the Respondent to re-open her case. The Respondent did not provide, as far as I can see, a witness list in the trial management endorsement; had she advised the Applicant that she intended to call the evidence recited in her closing submissions, the Applicant may very well have elected to call more extensive evidence when he entered his case. It would therefore be unfair, at this late date, to allow further extensive and corroborative evidence to be now led by the Respondent. I also note that Ms. O’Brien initially withdrew her claim for an adjournment, and the trial therefore proceeded; the costs of re-opening the matter may very well exceed the costs thrown away originally claimed by the Applicant. As well, the purpose of a bifurcated trial was to make the process less expensive and time consuming as the determination of the dates of cohabitation may very well resolve the other outstanding issues. As a trial management issue, to re-open the case would result in lengthening the trial to no apparent purpose. At this point in time, the dates of cohabitation and separation can be determined from the evidence of the parties and the record itself. It is not in the interests of justice that we return to trial on these issues in November of this year, thereby leaving the matter unresolved until the May, 2014 sittings, nearly a year after the trial commenced. Finally, my recollection from the last day of trial was that the Respondent was anxious to close her case in order to return to her work in Salt Lake City; she cannot now change her mind when the trial could have continued the next day had she so requested.

[8] For the reasons set out below, I have made findings and/or an order as follows:

a. The date that the parties commenced cohabitation is July 1, 2005;

b. The date of separation, and the valuation date for the purpose of equalizing net family property is October 15, 2009;

c. The divorce is severed from the corollary relief and the Applicant may obtain a divorce upon filing the requisite affidavit as required under Rule 35 of the Family Law Rules.[^4]

Evidence at Trial

[9] As noted, the bifurcated issues before me were tried over a two day period during the May, 2013 sittings. The only witnesses were the Applicant and the Respondent.

[10] The Applicant is a businessman, who lives in Markham, Ontario. He is 76 years old. He owns two businesses; McKin Health Care Specialties Inc. and Canada Endoscope Corporation, which together supply and manufacture surgical endoscopes. McKin has been in business since 1989 and Canada Endoscope since 1998; they appear to be prosperous and stable. His income from his business is quite low and it is common ground that he lives frugally; in 2010 his total income was $55,530.11. He owns a home located at 35 Sarah Jane Court in Markham. That home is acknowledged to be the matrimonial home, and both parties continue to live under the same roof, although, in the last three years, Ms. O'Brien has spent significant periods of time working outside of Canada.

[11] Mr. O'Brien has been married before. He testified that he married another woman named Nancy Robinson. He said that this marriage lasted three days and was annulled.

[12] He also married a woman named Shirley Lake in 1976.[^5] She brought a child into the marriage, Kyle Thomas Lake, who was then four years old. Although that marriage ended in divorce in 2000, Mr. O'Brien has remained close to Kyle, who legally changed his last name to O’Brien. Kyle lived with the Applicant until 1991 when he went to university in the United States. The Applicant testified that Kyle’s natural father did not support Kyle after the marriage with Shirley Lake; he also said that he treats Kyle as his own son and Kyle’s children as his grandchildren. He has employed Kyle’s wife, Allison, in his business, a source of resentment to the Respondent. In fact, it was the Respondent’s extremely negative opinion of Mr. O'Brien’s relationship with Kyle and his family which was largely responsible for the marriage breaking down.

[13] Ms. O'Brien is 58 years old. She was born in Kazakhstan and immigrated to Canada with her daughter, Olga Aimanova, in 2000. When they came to Canada, Ms. O'Brien had the means to purchase a one bedroom condominium for cash; she paid $102,000 for the property, which is located at 5 Massey Square in Toronto. That property was originally purchased solely in the name of Galina Aimanova; however, it has been since transferred on several occasions. On November 18, 2008, the condominium was transferred by Ms. O'Brien to herself and her daughter. On September 1, 2011, the condominium was further transferred to Olga Aimanova solely. Olga presently occupies the condominium.

[14] When the parties met, Ms. O'Brien was working for the Canadian Imperial Bank of Commerce (“CIBC”) as a data entry clerk. That job ended after she began living with Mr. O'Brien. However, she is fluent in both Russian and English, and in 2008, she reconnected with a company known as Aker Solutions (“Aker”) with whom she was employed before coming to Canada. Since her marriage to Mr. O'Brien, she has worked with Aker on several projects, firstly in Brisbane, Australia between February, 2010 and July, 2011 and, more recently, in Salt Lake City, Utah since October, 2012. According to her income tax returns, her income from employment in 2010 was $122,457.

[15] One of the few things that the parties agree on is that they met in September, 2004. They were attracted to each other and began a dating relationship. Ms. O'Brien states that she moved with the Applicant on February 20, 2005, and that after that date her condominium was vacant. She acknowledges that she did not move her clothing into the Markham residence at that time because Mr. O'Brien would not allow her to do so, and that he insisted upon her storing her clothing at the Endoscope factory in Markham. She says that she moved her clothing into the matrimonial home on July 1, 2005.

[16] Mr. O'Brien denies that cohabitation took place that early. It was his evidence that the parties began spending weekends together in February, 2005, but that Ms. O'Brien took the subway to his place on Friday and he drove her to the subway to return to work on Monday mornings; she otherwise lived in her condominium. It was his evidence that cohabitation began on December 20, 2005.

[17] The parties were married on May 12, 2006. The marriage itself seems to have been troubled from its inception. Ms. O'Brien complained that the Applicant had purchased a cheap wedding ring, and also that he had also forced her to sign a prenuptial agreement immediately prior to marriage. She said that Mr. O'Brien did this at the instigation of Kyle and his wife, who never approved of the marriage. She complained that Mr. O'Brien only told Kyle and Allison of the marriage in April, 2006 after which they were against her from the beginning.

[18] And the animosity between Kyle and the Respondent continues to the present day, if the Respondent’s evidence at trial and closing submissions are any guide to that. In fact, the Respondent seems almost obsessed by the issue. She persists in referring to Kyle as Kyle Lake, notwithstanding his legal name change to Kyle O’Brien. In her submissions and in her evidence, she referred to Kyle O’Brien’s wife, Allison, as being his “Caribbean partner” or “Caribbean mate”; Ms. O'Brien acknowledged in evidence that this was a reference to Allison’s ethnic background.[^6] She complained bitterly in her submissions and evidence about Kyle’s multi-million dollar home as compared to Mr. O'Brien’s more modest residence. And she spent a great deal of effort in her closing submissions complaining about Kyle O’Brien, and his role in Mr. O'Brien’s life, when that was largely irrelevant to the issues presently before the court, being the dates of cohabitation and separation. She cross-examined Mr. O'Brien extensively concerning Kyle and his wife; when I finally instructed her to stop that line of questioning as being irrelevant, she refused to cross examine further and sat down. Notwithstanding my strong suggestion that she do so, she refused to further cross examine Mr. O'Brien on much of his evidence surrounding the dates of cohabitation and separation in issue at this trial.

[19] And according to the Applicant, it was largely issues concerning Kyle which resulted in the separation. He testified that the reason for the separation was because Ms. O'Brien had no interest in having anything to do with Kyle or his family. He states that this was a non-negotiable issue for him; he had determined that he would treat Kyle as his son, and wished to treat Kyle’s children as his own grandchildren; unfortunately, however, Ms. O'Brien would not accept the Applicant’s decision to make Kyle’s family a part of his life. Mr. O'Brien stated that this was an ongoing battle within the marriage; after her job with CIBC came to an end in December, 2006, Ms. O'Brien complained openly and constantly about the fact that he had employed Allison in his business instead of her or her daughter. He said that by May, 2008, there had been no sexual relations between him and the Respondent for some time. Combined with these factors were health issues which he was suffering from.

[20] Mr. O'Brien testified that the separation occurred on the May, 2008 long weekend. He wished to go to Kyle’s cottage to spend the weekend but because of the animosity between Kyle and Allison on one hand, and Ms. O'Brien on the other, he could not. He said that he felt that the marriage was over and that there was little point in continuing. He says that he then told Ms. O'Brien that he did not wish to carry on with the marriage. Based upon this conversation, Mr. O'Brien chose May 20, 2008 as the date of separation in his application issued several years later on June 30, 2010.

[21] Ms. O'Brien denies that this conversation took place. She says that during that weekend there was a blow up between the parties. That was about the fact that Ms. O'Brien purchased a ring for herself that was to replace the wedding ring that the Applicant had purchased for her from what she referred to as a “dollar store.” She acknowledges that there was a blow up that weekend, but that separation was not mentioned.

[22] It is common ground that the parties continued to live together at the matrimonial home after that date. At a certain point in time, when Ms. O'Brien’s employment insurance benefits ran out, Mr. O'Brien began paying his wife $1,500 per month. Ms. O'Brien says that this occurred in 2007; later in evidence she says acknowledged that this occurred in June, 2008. Mr. O'Brien says that he paid those monies after May, 2008 to Ms. O'Brien to support her and pay her expenses as she had no income. He acknowledges that after May, 2008, little changed other than that; the parties continued to share the same bed and live under the same roof, and he attempted to keep things as amicable as possible.

[23] It is problematic that after May, 2008, there were none of the indicia of separation which we normally see in cases such as this. On July 3, 2008, Mr. O'Brien attended with Ms. O'Brien and her daughter for a family picture. The parties continued to celebrate birthdays and holidays together as indicated by the family photographs submitted in evidence by the Respondent. Mr. O'Brien sent Ms. O'Brien and her daughter on a Florida holiday in August, 2009. The parties attended the “Nutcracker” together in December, 2009. The parties continued to share a bed although they did not have sexual relations; by his own evidence, the Applicant did not vacate the bedroom until August or September, 2011. Mr. O'Brien filed his income tax return for 2008 as being married; he stated that this was on the advice of his accountant who stated that if he was “married” during any portion of 2008, he had to file the return using that status.[^7] Olga lived with the Applicant and the Respondent in the matrimonial home; she remained even after the Respondent left for Australia in February, 2010, moving out only after being asked to in September, 2010.

[24] There was, however, evidence that Ms. O'Brien was aware that the marriage was at least in trouble, if not over. On November 17, 2008, she transferred her Toronto condominium to herself and Olga Aimanova as joint tenants; although she testified that she had always intended to do that from when she bought it, she could not explain why the transfer took place exactly at this time, within months of May 20, 2008. Her explanation that she did not have the money to transfer it to both of them when she initially purchased the property was simply not credible in light of the fact that she had purchased the condominium for cash when she arrived in Canada. She acknowledged meeting with a marriage counselor on December 14, 2009. Mr. O'Brien refused to go, and the counselor told Ms. O'Brien that she could not help her because it was a “legal problem.” In December, 2009, just before Ms. O'Brien was due to leave to work in Australia, she said that she and her husband had agreed to put the “divorce on hold”; presumably that would not have been necessary were all well within the household.

[25] More importantly, in August, 2009, Mr. O'Brien retained legal counsel to effect the separation. He stated that things were not improving; there were still the same toxic responses to Kyle O'Brien’s family. At that time, he met with Sandra Curic at the Andrew Feldstein & Associates Law Firm; that lawyer drafted correspondence dated October 15, 2009 which made it clear that it was Mr. O'Brien’s position that the parties had separated. The letter stated that “Phillip has advised me that your marriage has now deteriorated to the point where it is absolutely no longer feasible for the two of you to reside together in the same residence and that this has been the situation since May 2008.” It speaks of a divorce, support and vacating the home as well as property division. As is the norm, it requested a response within 10 days failing which Ms. Curic would be seeking instructions to commence a court application.

[26] Unfortunately, Ms. O'Brien saw fit to ignore that letter. Initially, Mr. O'Brien handed to Ms. O'Brien in the home in an envelope; Ms. O'Brien tossed it onto a coffee table without reading it. Later, he gave her a copy of the letter outside of an envelope; again, Ms. O'Brien ignored the letter. Indeed, Ms. O'Brien states that she was never given the letter. She said that around October 15, 2009, she was approached by her husband who said that he wished to discuss separation. She testified that he mentioned a letter but never gave it to her. She suggested a time on the weekend to meet to discuss the separation issues, but Mr. O'Brien went golfing instead. She said that she found a copy of the letter a week later, but when she sent Olga away so that she and Mr. O'Brien could discuss things, the talk never happened. She said that Mr. O'Brien was “happy and complacent and smiled” but that other than the exchange of a couple of phases nothing else occurred.

[27] Mr. O'Brien next attempted to communicate separation in February, 2010 in an e-mail and a handwritten note both dated February 5, 2010. The e-mail copied Ms. O'Brien with instructions from Mr. O'Brien to his lawyer to commence legal proceedings and the handwritten note contained a copy of the e-mail along with a $2,000 cheque. The letter said that there would be “no more funds from me this month.” Mr. O'Brien said that he left it on the table for his wife. Ms. O'Brien again denied receiving this letter; she testified that she only saw it when she returned from Australia in August, 2011. The cheque was never cashed.

[28] However, and perhaps not coincidently, Ms. O'Brien obtained employment in Australia later that month. Mr. O'Brien testified that Ms. O'Brien called him from the airport on a Friday in February, 2010. He says that Ms. O'Brien told him that she was going to Australia for a limited period of time to work. She said that she would e-mail him later with details. She did not discuss with him where exactly she would be living or provide him with contact information in Australia.

[29] Not surprisingly, Ms. O'Brien denies this version of events. She says that the parties discussed Ms. O'Brien’s job in Australia after she was offered the position in Australia. She says that she discussed the opportunity with Mr. O'Brien and he was enthusiastic and interested in it and gave her input as to whether to take the job. She testified that she asked Mr. O'Brien to review the contract submitted by Aker in December, 2009 as he was more knowledgeable in matters such as this than was she. She acknowledged, however, that the contract in Australia was an opportunity which was timely because she had received her “last cheque” from her husband. She noted that until then, and since losing the CIBC job, she had been incapacitated by sciatica pain and she took the job because of her improvement in her health combined with the fact that Mr. O'Brien was no longer paying her and she otherwise had no means of support. She testified that it was a positive event for both parties, and that because of the job opportunity in Australia, Mr. O'Brien agreed to “cancel all his divorce activities.”

[30] In fact, there was no such cancellation of divorce activities, and an application was issued on behalf of Mr. O'Brien on June 20, 2010. E-mails sent by Mr. O'Brien subsequent to Ms. O'Brien’s departure make it apparent that he was intent upon winding up the marriage. On April 19, 2010, Mr. O'Brien e-mailed the Respondent and advised her that he was filing his income tax return as being separated. Moreover, from the time that she left for Australia, Mr. O'Brien attempted on numerous occasions to obtain an address for service from Ms. O'Brien: On May 3, 2010, Mr. O'Brien requests an address from Ms. O'Brien and he continued to request her address by e-mails dated July 26, August 1, August 16, August 22 and October 19, 2010. The replies from Ms. O'Brien ignored the request for an address; she attempted on a number of occasions to engage Mr. O'Brien in dialogue about marriage, family or health matters, ignoring his numerous assertions that he was commencing divorce proceedings. She pleads with him at one point to “not destroy my life, your life, our life, life of your daughter [presumably Olga]”; Mr. O'Brien’s response is “Stop with these e-mails.” At one point, on October 16, 2010, she does give an address; Mr. O'Brien testified that this was later found to be a false address. Mr. O'Brien retained a private investigator without success; eventually, Ms. O'Brien provided an address on January 18, 2011, almost a year after leaving for Australia. Mr. O'Brien’s application was served on January 21, 2011 but apparently not at the address given by Ms. O'Brien. It is unknown how the process server actually obtained Ms. O'Brien’s address in order to effect service.

[31] Ms. O'Brien testified that she was shocked by the disclosure made in April, 2010 that her husband was filing his income tax return as being separated; she said that she was “floored.” Ms. O'Brien stated that the reason that she did not give an address to her husband was because she simply did not have a stable address in Australia. She said that rents were expensive, and she moved five times in 17 months. As such, she explains that there was no opportunity to provide a residential address.

[32] She also says the e-mails sent by Mr. O'Brien did not really mean that he wanted a separation; she testified that he had a tendency to “fly off the handle” and refuse to discuss matters on a reasonable basis. She testified that Mr. O'Brien was a “hothead” who would say one thing, but mean another. She said that he would make angry statements, but would cool down after when he would re-affirm the marriage relationship. She said in cross-examination that Mr. O'Brien’s “words have no meaning.” She continued to deny throughout cross-examination that a separation had ever taken place.

[33] In fact, there was one time that Ms. O'Brien was responsive to Mr. O'Brien’s e-mails, and that was when he advised Olga Aimanova in an e-mail dated September 8, 2010 that he wished to remove Ms. O'Brien’s things from the home. Ms. O'Brien immediately took action as a result of this communication; she retained a lawyer, Stephen P. Keir, who wrote Mr. O'Brien to advise that if removed Ms. O'Brien’s things from the home, he “will be in clear breach of he (sic.) Family Law Act.” When Ms. Curic wrote Mr. Keir to inquire as to whether he was in a position to accept service of process on behalf of his client, there was resounding silence.

[34] The fact that Ms. O'Brien hired a lawyer when Mr. O'Brien threatened to remove her things from the home indicates to me that she only ignored her husband’s statements when it served her purposes to do so. When confronted with something that might materially affect her, she chose not to be dismissive of the statements made by Mr. O'Brien and did not dismiss these statements as being made by a mentally ill “hothead”. Her reaction to the threats of removal is in sharp contrast to her consistent unresponsiveness to Mr. O'Brien’s pleas for an address or for an acknowledgment of the separation.

[35] Ms. O'Brien also responded to the application that was served on her. Her answer was prepared by a second lawyer, John Phillips, and was dated May 5, 2011. It was filed while she remained in Australia and surprisingly, she does acknowledge in the family history filed with that document that the parties did, in fact, separate on April 20, 2010. That was presumably the date that Ms. O'Brien received the e-mail from her husband advising that he was filing his income tax return as being separated and which also stated that “I am advising my Lawyer to proceed with the necessary papers to file for separation & subsequently for divorce.” Ms. O'Brien has now resiled from that position; she said that the lawyer was incompetent and did not listen to her instructions. She testified that he refunded her entire retainer and that he agreed that the job was “not up to the level.” She testified that she did not recall whether she read the document before she signed it.

[36] Ms. O'Brien returned from Australia on August 1, 2011. Her assignment there was over, and upon her return to Toronto, she moved back into the matrimonial home. She found Mr. O'Brien there with his two sisters; they were there because he had become quite ill because of a misdiagnosis of a condition that turned out to be rheumatoid arthritis. He had lost a lot of weight and required surgery on August 19, 2011, soon after Ms. O'Brien’s return. Ms. O'Brien moved back into the bedroom three weeks after his operation and Mr. O'Brien says that he almost immediately moved out. Ms. O'Brien testified that she nursed him back to health; she acknowledges however that she was unaware of the illness until she arrived back in Canada, and Mr. O'Brien testified that he asked her to leave the home but she refused. Mr. O'Brien’s sisters left the home after Ms. O'Brien moved back in; Mr. O'Brien testified that they “did not care for her.”

[37] On December 1, 2011, there was a further transaction involving Ms. O'Brien’s condominium property. On that date, it was transferred into the name of Olga Aimanova alone. Ms. O'Brien stated that she transferred the property because she was intent upon going to Russia to work for Aker; although that job fell through, she said that she had wanted to protect her daughter if something happened.

[38] The parties remained under the same roof after Ms. O'Brien returned from Australia, although not in the same bedroom. The litigation proceeded toward trial. Ms. O'Brien received a further assignment with Aker in Salt Lake City, Utah, in October, 2012. Again, she did not disclose her residential address to her husband. That remains a mystery; when asked where she presently lives in cross-examination, she said that she had forgotten. At the date of trial, she continued to live in Salt Lake City, while insisting that no separation has ever taken place. The night prior to trial commencing, Ms. O'Brien returned from Salt Lake City for the trial, and stayed at the matrimonial home for the duration of the trial.

Analysis

[39] There are three issues to be considered at this juncture in the proceedings:

a. What date did the parties commence cohabitation?

b. What is the parties’ date of separation?

c. If eligible, should the divorce be severed from the corollary relief at this stage of the proceedings?

[40] I will consider each of those issues in that order

(a) What date did the parties commence cohabitation?

[41] Ms. O'Brien states that the parties began to live together on February 20, 2005. She says that at that time, she moved into Mr. O'Brien’s home in Markham. She acknowledges that she did not move her clothing in at that time as Mr. O'Brien would not allow it; her uncontradicted testimony was that she eventually moved her clothing into the home on July 1, 2005. She said that, until then, she was forced to store her clothing at the Applicant’s factory in Markham.

[42] Mr. O'Brien states that the parties did not move in together in early 2005; he acknowledged, however, that, in February, 2005, they began to spend long weekends together at his residence. He testified that Ms. O'Brien still lived in her condominium during the week and he would pick her up from the McCowan Subway Station near Highway 401 on Fridays and drive her there Monday mornings when she would return to work. He testified that the parties did not start cohabiting until December 20, 2005, shortly before Christmas. He says that he recalled that because he introduced Ms. O'Brien to his family that Christmas.

[43] There was a dearth of written evidence regarding what date the parties commenced cohabitation. The facts surrounding cohabitation must be gleaned from the testimony of the parties.

[44] Mr. Isenberg is correct when he describes Ms. O'Brien moving in without her clothing as being a “trial cohabitation.” As he noted, without her clothing there, she could move out “in a heartbeat.” She testified that her condominium in Toronto was empty after February, 2005, but when asked whether she had notified her insurer of this, she stated that she did not have any insurance on her condominium, which is surprising for a woman who struck me as being cautious in her business affairs. She did not give evidence about a “moving day” other than her evidence that she moved her boxes of clothing into Mr. O'Brien’s residence on July 1, 2005.

[45] Likewise, Mr. O'Brien did not give evidence about a “moving day.” He merely states that he recalls that the parties began cohabitation on December 20, 2005, but did not give details about what happened on that date. As noted by the Respondent, December 20, 2005 was a Tuesday, which would have presumably been a working day for her, and not a day that most people would choose to move their things into another’s home, especially just prior to Christmas.

[46] Choosing a date of cohabitation involves choosing the day that the parties moved in together. The only date when something of that nature occurred was July 1, 2005, when the Respondent moved her clothing into the matrimonial home. The other dates propounded by each of the parties were dates that each of them chose without explanation as to why they were chosen. I therefore find that the cohabitation between the parties commenced July 1, 2005.

(b) What is the parties’ date of separation?

[47] The more contentious issue between the parties is their date of separation. Mr. O'Brien insists that the parties separated on May 20, 2008, when he advised the Respondent that the marriage was over. He specifically recalls that conversation having taken place in the context of being unable to go to visit his stepson, Kyle O’Brien and his wife at their cottage because of the Respondent’s animosity toward them.

[48] The Respondent, on the other hand, does not even admit that there has been a separation. That is a surprising position, considering the e-mails sent to her by the Applicant in 2010, the fact that the Applicant has commenced divorce proceedings, and the fact that she herself admitted in her own pleadings a date of separation of April 20, 2010. In effect, she testified that the Applicant has mental problems which vitiate any of his actions directed toward separation including, presumably, instructions given to counsel to conduct the trial before me.

[49] The valuation date is defined in s. 4(1)1 of the Family Law Act as the “date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”

[50] Unlike the decision to marry, the decision to separate is not a mutual one. It is a decision which is often made by one party over the objections of the other. Those protestations matter not; once one party has decided to permanently separate and has acted on it, the other party has no ability to stop the process or object to it. This is confirmed by s. 8(3)(a) of the Divorce Act,[^8] which states that “spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other” (emphasis mine). As stated by D.L. Corbett J. in Strobele v. Strobele, [2005], O.J. No. 6312 (S.C.J.), the separation occurs when “the parties knew or, acting reasonably, ought to have known, that their relationship was over and would not resume” [paragraph 29]. Importantly, and applicable to the present case, he also says that, “Groundless hopes of reconciliation should not extend a valuation date where one spouse has been clear in his or her intentions to end the relationship” [paragraph 32].

[51] The issue of the date the parties separated becomes tricky where, as in the present case, the parties remain under the same roof, and to some extent, continue to carry on a life together. That is because, although a marriage may be bad, that does not necessarily mean that the parties have separated. To determine the date of separation or, in fact, whether a separation has occurred, involves an analysis of what might be found to be an event of separation, combined with how the parties subsequently lived their lives.

[52] Firstly, a separation can be indicated by an event of separation, being an unequivocal act by the separating spouse indicating that there he or she wishes to separate without the possibility of reconciliation. In Letford v. Letford, 2000 22453 (ON SC), [2000] O.J. No. 4061 (S.C.J.), Fleury J. stated that a separating spouse “must take some definite steps to notify the world at large of his intentions” and that “the requirements to get out of such a relationship must be easily observable and should in some way reflect the gravity of the step being taken” [paragraph 6].

[53] Secondly, the way the parties subsequently live their lives will necessarily indicate whether one or both consider themselves to be living separate and apart. The leading case which reviews the indicia of separation is Oswell v. Oswell (1990), 1990 6747 (ON SC), 74 O.R. (2d) 15 (H.C.), a decision of Weiler J. In that case, the husband had told the wife that he wished a separation in 1984, but the parties continued to live together under the same roof for a number of years after that date. Although a separation agreement was drafted soon after the initial discussion, the parties continued to live together “as friends” after that. They continued to go on holidays and participate in family activities together, and saw a therapist together in 1986. They continued to eat meals together and Ms. Oswell accompanied her husband to his father’s funeral in 1987. Weiler J. determined that the parties had separated in January, 1988 around the time that Mr. Oswell had prepared a draft financial statement for his wife.

[54] In making this determination, Weiler J. examined the various criteria which would indicate a separation; these were summarized well by J.E. Kelly J. in Lamantia v. Solarino, [2010] O.J. No 2113 (S.C.):

(a) physical separation often indicated by the spouses occupying separate bedrooms;

(b) a withdrawal of one or both of the spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium;

(d) the discussion of family problems and communication between the parties;

(e) the presence or absence of joint social activities;

(f) the meal pattern; and

(g) the performance of household tasks.

[55] In Oswell, Weiler J. also noted that the method by which the spouse has filed income tax returns also may indicate a separation [paragraph 18]. She also noted that if the spouses make plans for his or her assets as a separated person, this may indicate that there is no real prospect for the resumption of cohabitation [paragraph 19].

[56] In reviewing these criteria, it is apparent to me that the parties’ marriage in this case was troubled from the beginning. I also accept Mr. O’Brien’s evidence that he had told his wife that he wished to separate on May 20, 2008.

[57] However, as I noted above, nothing really changed after this discussion. There was substantial evidence that the parties continued to live under the same roof. Although the parties did not have sexual relations after that date, according to Mr. O'Brien they had not had such relations for some time prior to May 20, 2008. They continued to celebrate birthdays and holidays together after that date. Mr. O'Brien filed his income tax return for 2008 as being married; although he testified that his accountant told him to do so, that purported advice would seem to be contrary to the clear wording on the return itself which directs the taxpayer to note his or her status as of December 31 of 2008. The parties ate meals together and Mr. O'Brien paid for a holiday for Ms. O'Brien and her daughter in September, 2009.

[58] There were, however, several things that did change after May 20, 2008. Mr. O'Brien began providing monthly cheques to Ms. O'Brien in June, 2008. Ms. O'Brien arranged for a transfer of her condominium to herself and her daughter within months of the separation discussions.

[59] However, the reasons that Mr. O'Brien gave for seeing a family law lawyer in August, 2009 are significant. He said that nothing had changed by that point in time. He testified that there was the same animosity between the parties over Kyle O’Brien and his family and that although the parties were still “living together as a couple”, he advised Ms. Curic, that he “wished to separate” and get a divorce. His own testimony indicates that up until his meeting with Sandra Curic, nothing had really changed within the relationship since May, 2008.

[60] Mr. O'Brien testified that, on October 15, 2009, he delivered a letter to Ms. O'Brien which spoke of separation and the issues arising out of separation. That letter was clear and unequivocal. Ms. O'Brien denies that the Applicant gave it to her as alleged, although she admits to finding it later and reading it. The letter, by which Mr. O'Brien attempts to communicate to the Respondent through his counsel, is a clear statement of his intent to separate. I further accept Mr. O’Brien’s evidence that he made reasonable efforts to give it to the Respondent, who did admit that it eventually came to her attention.

[61] From that day forward, it is apparent to me that the Mr. O'Brien had taken steps which were unequivocal and which would indicate to the outside world, and to any reasonable person that the marriage was over. It is also apparent to me that, despite protestations to the contrary, Ms. O'Brien was also aware of the separation. She tried to get Mr. O'Brien to go to a marriage counsellor in December, 2009; he refused to attend presumably because reconciliation was not an option. She testified that she went to Australia partly because she knew she was receiving no further cheques from Mr. O'Brien as set out in his handwritten correspondence of February 5, 2010. She says that the parties discussed the Australian trip in December, 2009; had Mr. O’Brien then known she was leaving for Australia, there would have been no reason to draft and provide the February 5 correspondence stating that no further funds were to be paid. And were Ms. O'Brien not aware of the letter as she testified, how would she have otherwise known that she would no longer be receiving funds from Mr. O'Brien as set out in his February 5 handwritten note?

[62] Accordingly, I accept Mr. O'Brien’s version of the events leading up to Ms. O'Brien’s leaving for Australia, and I find that he was notified of this trip only when she was about to board the plane. It is also apparent that by the time Ms. O'Brien went to Australia, the parties were separated. Prior to the trip, Mr. O'Brien refused to go to marriage counselling. Ms. O'Brien went to Australia without providing the address or contact information where she could be reached. She refused to provide an address to Mr. O'Brien or advise him where she was living. Mr. O'Brien never visited her in Australia; indeed, his e-mails are clear and unequivocal that he intended upon a separation. He filed his 2009 income tax return as being separated. And when Mr. O'Brien fell ill and required surgery, he did not advise his wife of his very serious medical condition prior to her return to Canada in August, 2011 and instead turned to his sisters for assistance. All of these are indicia that the parties were then separated.

[63] I reject Ms. O'Brien’s contention that Mr. O'Brien had some sort of “hysterical” condition which vitiates the statements that he made through counsel and through his e-mails about being separated. I observed Mr. O'Brien on the witness stand and saw no sign of his being a “hothead” as alleged by the Respondent. He was calm throughout his testimony and cross-examination. His solicitor has judged that Mr. O’Brien is competent to provide instructions. There is no evidence of mental illness which would support the contention that Mr. O'Brien was not really intent upon separating. Indeed, Ms. O'Brien has provided no documentary or other independent evidence that Mr. O'Brien wished to stay married after she left for Australia; her own answer in these proceedings admits to April 20, 2010 as the date of separation. And as noted above, Ms. O'Brien’s statements that Mr. O'Brien did not mean what he said is belied by her own swift response to the threat made by Mr. O'Brien to Olga to remove her mother’s things from the matrimonial home.

[64] Accordingly, I find October 15, 2009 to be the date of separation and valuation date for these parties. That is the date that Mr. O'Brien gave, through his solicitor, an unequivocal statement of his intention to separate, a position from which he did not retreat thereafter. All of the evidence indicates a separation continuing after that date. For Ms. O'Brien to state that the parties have never separated detracts from her credibility, and is a completely unrealistic position.

(c) If eligible, should the divorce be severed from the corollary relief at this stage of the proceedings?

[65] Considering my finding as to the date of separation, there is no reason why the divorce should not be severed from the proceedings, with the remaining issues to proceed as a corollary relief proceeding. There are no child support issues. There are no medical or dental benefits in issue; nor is there any evidence that the divorce proceeding would work a hardship on Ms. O'Brien. In particular, although Ms. O'Brien may lose her possessory rights to the matrimonial home under Part III of the Family Law Act, she has been living out of the country for substantial blocks of time, and can move to the condominium which was, by her own admission, transferred to her daughter only “in case something happened to her” and which confirms that she continues to hold an interest in that property.

[66] As such, there will be an order that the divorce will be severed from the corollary relief and that the remaining proceedings proceed as a corollary relief proceeding. The Applicant may proceed to obtain the divorce on an uncontested basis by filing the requisite affidavit as required under Rule 36 of the Family Law Rules.

Costs

[67] Under Rule 24(10), costs must be determined at each stage of the proceedings. Accordingly, the Applicant and the Respondent each shall provide costs submissions for this portion of the proceedings on a ten day turnaround. Costs submissions to be no more than six pages in length not including the bills of costs and any offers to settle served under Rule 18.

McDERMOT J.

Released: September 12, 2013

[^1]: R.S.O. 1990, c. F.3

[^2]: As these parties are married and spousal support is claimed under the Divorce Act, entitlement based on cohabitation is not in issue; however, the length of cohabitation remains, of course, relevant to quantum.

[^3]: The Applicant filed written submissions, to which the Respondent replied. The Applicant filed reply written submissions. Ms. O'Brien then filed further written submissions, again requesting a “new trial.” As Mr. O'Brien’s counsel had the last right of reply, I have disregarded her last set of submissions.

[^4]: O. Reg. 114/99

[^5]: It was not clear from the evidence as to whether this marriage took place before or after the abortive marriage to Nancy Robinson.

[^6]: Allison O’Brien was born in Puerto Rico.

[^7]: That is not what the 2008 income tax return itself states; the box marked “Information about you” instructs the taxpayer to “Tick the box that applies to your marital status on December 31, 2008”. According to the instructions on the face of the return, were the Applicant to have separated on May 20, 2008, he should have ticked off “separated” in that box.

[^8]: R.S.C. 1985, c. 3 (2nd Supp.)

O'Brien v. O'Brien, 2013 ONSC 5750

Case Summary

Introduction

Evidence at Trial

Analysis

(a) What date did the parties commence cohabitation?

(b) What is the parties’ date of separation?

(c) If eligible, should the divorce be severed from the corollary relief at this stage of the proceedings?

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 3