COURT FILE NO.: FC-12-039822-00

DATE: 20131204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Teresa Chan

Applicant

– and –

Chieh Gin Chan

Respondent

Counsel: Roselyn T. Pecus, for the Applicant Respondent Unrepresented

HEARD: November 29, 2013

REASONS FOR DECISION

Mcgee J.

Introduction

[1] This trial of an issue determines the date of separation for Teresa Chan and Chieh Gin Chan. The parties were married April 28, 1981 and are the parents of two adult sons. Ms. Chan is 62 years of age, Mr. Chan is 64.

[2] The wife’s claimed date of separation is April 11, 2011; being the date upon which she retained counsel and instructed her to give notice of the separation and her intention to resolve matters amicably. Counsel’s notice letter was dispatched on May 9, 2011. The husband’s date of separation is May 28, 2008; being the date of a particularly memorable spousal conflict.

[3] Neither party took steps after May 28, 2008 to end the marriage, or to cease residing together. They did not physically separate until November of 2011. The husband deposes that the lack of physical separation is the reason that he filed each of their Income Tax Returns as married for the taxation years of 2008, 2009, and 2010.

[4] Disclosure of the parties’ net family property has been on hold pending determination of the date of separation. On both dates, they held a jointly owned home. By 2011 its value had increased into the range of $2,400,000. Both parties additionally hold significant savings[^1] which amounts give rise to an equalization payment.

Mr. Chan’s proposed Date of Separation: May 28, 2008

[5] Mr. Chan states within his opening and closing submissions that May 28, 2008 is the correct date of separation, and that his spouse’s April 11, 2011 proposed date is “nothing more than a self-serving declaration of valuation date for the specific purpose of gaining favourable equalization, and to avoid paying half the carrying costs for the home after May 28, 2008.”

[6] He explains that he took no actions to end the marriage following the May 28, 2008 conflict because the parties had agreed that

a. he would grant her a divorce b. they would not go to lawyers c. she would pay 50% of the house costs, and d. they would not sell the jointly owned house.

Ms. Chan denies that there was every such an agreement.

[7] During his evidence in chief, Mr. Chan spoke about the events of May 2008 as part of a greater continuum in which he saw himself as the forbearing victim of his wife’s inexplicable rages and mood swings. He expounded that his wife was financially illiterate, did not understand stocks, showed no interest in money and could not be trusted with the management of family finances.[^2]

[8] He also acknowledged restraining Ms. Chan during the conflict on May 28, 2008. He viewed her actions as irrational. He deposed that he could not allow her to leave the home, or to call 911 because it could result in a fine, and would alert the neighbours to the fact that they were having problems. This was a significant and overriding concern for him - such knowledge would reduce the resale value of their home.

[9] Mr. Chan points to a number of subsequent and uncontested occurrences which confirm in his mind that the marriage ended prior to April of 2011.

a. October 1, 2008: Mr. Chan returned monies to Ms. Chan’s brother which they had held in trust for him since June of 2003. b. February 3, 2009: Mrs.Chan revoked a 1992 Power of Attorney given to Mr. Chan for the purposes of managing their investments. For the entirety of their marriage prior to that date, Mr. Chan solely managed their investments. Finances were his domain. c. October 5, 2010: Mrs. Chan caused a severance of the joint tenancy on the matrimonial home to be registered on title October 5, 2010. This was not made known to the husband at the time. He remains outraged at his wife’s unilateral action in severing the joint tenancy. More than anything else, this demonstrates to him that the marriage was over.

[10] Family photos of “last” events presented by Mr. Chan are not accepted by the court as indicia of separation. They do not accord with the testimony of Ms. Chan, and are not on their face indicative of anything. Moreover, the photos are not date stamped, despite Mr. Chan deposing that he has the date stamped copies, but chose not to place those within the record.

[11] Neither do I place any weight on his submission that the lack of joint holidays after May 2008 supports Mr. Chan’s date of separation. The parties had not travelled together since 2003.

[12] Mr. Chan acknowledges that at no time did he contact counsel, give written notice of an intention to separate, or prepare any document - even one for a corollary purpose such as an Income Tax Return - which referenced a separation.

Ms. Chan’s proposed Date of Separation

[13] Ms. Chan described in a quiet and dignified manner her experience of 30[^3] years of marriage to Mr. Chan. She spoke of a strained relationship throughout in which there was little, if any intimacy. Hers was to be a limited and defined role. Mr. Chan made all the decisions, often turning his back on her while she was speaking. He referred to her as stupid, a nothing, and a nutcase who should see a psychiatrist.

[14] She attended to all the needs of the household and the children while working fulltime. Her paycheque was deposited to a sole account, from which she transferred amounts to the joint account which was managed by Mr. Chan. He would direct her as to the amount to deposit monthly. Any monies remaining to her were used for household, child and transportation expenses. She did not stop depositing to the joint account until November 2011 when she moved from the home.

[15] Ms. Chan paid for her own vehicle and was required to purchase Mr. Chan’s old vehicle when he purchased a new one. Sometimes, she did not have sufficient monies to pay for the vehicle and asked to borrow from her husband. On one occasion she refused to take his vehicle, preferring one of her own choice. Her rebellion ended badly. He took her to the dealership and purchased a standard transmission vehicle that she could not drive. The car was put in his name.

[16] The parties rarely communicated but for scheduling and caring for the children. Social events were uncommon. They had few friends and were infrequently invited to functions. She described him as a person who would manipulate and control others. They seldom vacationed, together or apart.[^4] Her family stopped visiting them after a particularly unpleasant confrontation with Mr. Chan over the Christmas holidays in 2008.

[17] Ms. Chan described no change in this pattern during the period of May 2008 to April 2011, but for a gradually worsening of her circumstances.

[18] It is not contested that the parties had fought frequently for decades. Ms. Chan deposed that most fights ended in threats of divorce. The fight of May 2008 was memorable only for its physical violence. She recalls that day vividly, and the trauma of being strangled as she attempted to leave the house and call for assistance. She does not recall any calm discussion, and certainly not an oral agreement.

[19] She places no particular significance on that day, or the request later that year to return monies to her brother that had been invested on his behalf.

[20] She acknowledges removing Mr. Chan as her Power of Attorney in February 2009. She was angry that he would not listen to her when she wanted to sell her holdings in Nortel. As he was not acting on her instructions, she revoked the Power. And she did not tell him that she had revoked it, contrary to the advice within the standard form letter which accompanied the revocation.

[21] The Court received little testimony as to her reasons for severing the joint tenancy in October 2010, a full 16 months after the May 2008 conflict. She acknowledged that she did so, and that she neither consulted with, nor informed her spouse – whom she was angry with, and who always treated her with distain.

[22] Ms. Chan was carefully questioned on each of these events. None raised for her the prospect that she was separating – only that she was taking steps to assert her independence within the marriage. She did not make the decision to end the marriage until April of 2011, when she scheduled an appointment with a family law lawyer.

The Law

[23] Section 8 of the Divorce Act governs the granting of a divorce, and section 8(3) speaks to calculating the period of separation. Spouses are deemed to have lived separate and apart for any period in which they resided apart, and had the intention to live separate and apart. Section 4(1) of the Family Law Act defines “valuation date” as: “The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”

[24] According to Strobele v. Strobele, [2005] O.J. No. 6312, 34 R.F.L. (6th) 111 (Sup. Ct.), at para. 29, the goal of s. 4(1) of the FLA is “to fix the date on which the economic partnership should fairly be terminated.” There are two aspects to the definition:

a. the date on which the spouses separate, and b. that there is no reasonable prospect that they will resume cohabitation.

Corbett J. states, at para. 29:

The structure of the section links the concepts of separation and cohabitation. These concepts, though assuredly related, are not interchangeable. Cohabitation implies conjugality, as that term is understood by the law. Separation requires more than living under separate roofs to encompass a cessation of the multi-levelled intricate relationship between couples. No one factor determines when the test has been met. The global question is, when was it that the parties knew or, acting reasonably, ought to have known, that their relationship was over and would not resume?

And at para. 30:

There are many cases where one spouse knows that there will be no reconciliation and the other does not because the one has decided he or she does not wish to reconcile, but the other does not yet understand this. A fair determination of the issue requires that an objective eye be case upon the unique circumstances of the couple.

[25] Parties can be separated while living under the same roof, Oswell v. Oswell (1990), 1990 CanLII 6747 (ON SC), 74 O.R. (2d) 15, 28 R.F.L. (3d) 10 (Ont. H.C.), Torosantucci v. Torosantucci (1991), 1991 CanLII 12851 (ON SC), 32 R.F.L. (3d) 202, 26 A.C.W.S. (3d) 994 (Ont. U.F.C.), Buller v. Buller (1979), 1979 CanLII 2100 (ON SC), 26 O.R. (2d) 92, 104 D.L.R. (3d) 590 (Ont. Co. Ct.), Anderson v. Anderson (1994), 1994 CanLII 18224 (ON SC), 6 R.F.L. (4th) 450, 50 A.C.W.S. (3d) 273 (Ont. Gen. Div.).

[26] In determining the valuation date for purposes of calculating the NFP, the court set out, at para. 6, of Oswell, the indicia for determining when spouses, who occupied the same premises, are living separate and apart:

1. There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms
2. There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium.
3. The absence of sexual relations is not conclusive but is a factor to be considered.
4. Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern: McKenna v. McKenna (1974), 1974 CanLII 2204 (NS CA), 19 R.F.L. 357 (N.S. S.C.); Vogel v. Vogel (1988), 1988 CanLII 8668 (ON SC), 18 R.F.L. (3d) 445 (Ont. H.C.J.).
5. Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above: McKenna, supra.

[27] Further to the test for determining when spouses, occupying the same premises, are living separate and apart, the court in Oswell, at para. 7, states that, “the court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent”. The example that the court provides, when determining a spouse’s true intent, as opposed to his or her stated intention, “is the method in which the spouse has filed income tax returns”.

[28] Also, according to Oswell, at para. 32, an early valuation date may be appropriate where one spouse, with the intention of ending the relationship, transfers or dissipates assets. Moreover, a further indication that there is no reasonable prospect of resumption of cohabitation is the manner by which a spouse makes plans for his or her assets as a separated person, in other words, each of the spouses make plans for their assets as a separated person”: Caratun v. Caratun (1987), 1987 CanLII 4094 (ON SC), 61 O.R. (2d) 359, 43 D.L.R. (4th) 398 (H.C.J.), at para. 15).

[29] Every marriage is different and the courts must look to the various objective factors to determine of the parties are living separate and apart: Greaves v Greaves, 2004 CanLII 25489. Some marriages are by nature stormy and erratic. The court must exercise caution and differentiate between a couple living together albeit with some unhappiness and dissention, on the one hand, and a situation where they are instead both living there but as two separate individuals: Galbraith v Galbraith (1969,) 5 D.L.R. (3d); Dupere v Dupere (1974) 1974 CanLII 1858 (NB CA), 10 N.B.R. (2d) 148 (C.A.) A marriage may be at times stormy, but ongoing: William v Williams 1990 N.W.T.J. No 1180. Newman v. Newman R.F.L. Vol 2 page 220.

Analysis

[30] The marriage between Mr. and Mrs. Chan has been longsuffering and unhappy, albeit not without financial comfort. They have shared little of what might be commonly viewed as the hallmarks of a conjugal relationship.

[31] Although they continued the joint use of the master bedroom, they ceased sharing a bed in 1985; a year after their youngest son was born. Ms. Chan gave clear and composed evidence regarding the cessation of sexual relations. Mr. Chan did not significantly contest her recital of events, or the lack of intimacy. He was clearly uncomfortable while testifying on this topic which he referenced as “that gong show.”

[32] Mr. Chan’s discomfort dissipated as his testimony turned to finances. Any matters touching on money brought forth a charming, articulate and bold manner of speech. He marvelled at his own success, the manner in which he had created wealth and provided for his family. He bragged about the amount of money under his management.

[33] At the same time, Mr. Chan described his former spouse as financially illiterate, a liar, and generally undeserving. Such statements were entirely gratuitous and unnecessary to the issue to be determined. They served only to underscore the financial control exercised by the husband and his dismay that his spouse had, and has, the means to subjugate it.

[34] I find that it was this control which was the context for the wife’s revocation of the Power of Attorney and the severance of the joint tenancy, not any intention to end the marriage. On its face, neither act is sufficient to end a relationship, transfer or dissipates assets. A severance only ends a right to survivorship, and does not affect a co-tenant’s rights of possession, or ownership. At no time did Ms. Chan make plans for her assets as a separated person.

[35] Strobele requires the court to cast an objective eye upon the unique circumstances of the parties. Those circumstances suggest that once the children were raised, the primary purpose of this marriage was to shelter and foster wealth. Thus, the incidents of separation that are peculiar to this marriage ought not be measured by joint activity or companionship; but rather by the degree of the spouse’s financial union – which did not change after May 28, 2008.

[36] I further reject the husband’s proposed date of separation for the following reasons:

a. The wife states that there was no agreement on May 28, 2008. On this point, and any others in which the testimony of the wife and the husband conflict, I prefer the evidence of the wife. She provided more credible, thoughtful and understated testimony than that of the husband. b. The altercation on May 28, 2008 included physical restraint of the wife by the husband. The husband sought to hide the altercation from the authorities and the neighbours. The alleged agreement was never reduced to writing. There was no legal advice or financial disclosure. Were there to be an agreement formed in such an environment, it would not meet the requirements of section 54 or 55, of the Family Law Act. c. Subsequent conduct by the parties is more consistent with the parties not separating on that day, than separating. Neither spouse made plans as a separated person until after the receipt of counsel’s notice letter in 2011.

[37] One cannot separate in secret. The wife could not reasonably have known that the marriage had ended in June of 2008. She continued to deposit her pay cheque to the joint account, the husband continued to manage the household finances, joint assets were maintained, joint Income Tax Returns were filed and joint household accounts such as car and home insurance and telephone/cell phones were paid. The wife continued to manage the household duties, buying groceries and preparing meals.

[38] Neither did the husband act as if the marriage had ended. He acknowledges that he took no steps to separate the parties’ assets, draft a separation agreement, or formalize terms of separation.

[39] Indeed, there is a sufficient basis to find that Mr. Chan would still be in the marriage, but for the wife retaining counsel. He wanted to continue joint ownership of the home. Only after receiving notice from counsel for Ms. Chan in May of 2011, did Mr. Chan respond or act in any manner consistent with a person who believes that his marriage is irrevocably ended. Only after requests for disclosure from the wife’s counsel did Mr. Chan assert May 28, 2008 as the date of separation.

[40] Mr. Chan proposes that May 28, 2008 is nonetheless the correct date of separation, and should be so deemed, as it is the date upon which the parties lost trust in one another. I do not accept the proposal. The distain with which he spoke of his spouse throughout their marriage makes it clear that he has never held, coveted, nor fostered the trust of his wife. What was eroded after February of 2009 was simply Mr. Chan’s control of assets in his spouse’s name. Spouses are by law and custom independent entities within a marriage. Loss of control over a spouse’s assets is no basis for a deemed date of separation.

[41] For all of the reasons stated above, I am satisfied that at no time prior to Mr. Chan’s receipt of the lawyer’s notice letter did the couple live as separate individuals per Galbraith , or Dupere , supra.

Final Order to go that:

1. The date of separation is April 11, 2011.
2. The parties shall exchange Net Family Property Statements with the above date of separation and an Affidavit of Documents, on or before January 30, 2014.
3. Thereafter a settlement conference is to be scheduled.

Costs

[42] There is a presumption of costs to the successful party per rule 24 of the Family Law Rules. The applicant is to serve and file her cost submissions, Bill of Costs and any Offers to Settle by December 20th. Response by the Respondent to be served and filed by January 10th. Reply if necessary by January 15th. Submissions are not to exceed three pages, exclusive of the Bill of Costs and Offers to Settle.

Justice H.A. McGee

Released: December 4, 2013

[^1]: Potentially inclusive of a pension. [^2]: At one point he deposed that his only option to insure her financial security was “not to die,” and that such was his plan. [^3]: Mr. Chan states in his Answer that the parties were married 30 years, and the prior 8 years as common law. When asked in cross examination why he did not state 27 years – the length of the marriage were they separated in May of 2008, he provided an unsatisfactory response. [^4]: Mr. Chan placed great emphasis on Ms. Chan vacationing by herself after May 2008. Given the pre-May 2008 pattern, I accord this little weight.