COURT FILE NO.: FC-08-0079-1

DATE: 20130107

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ASGHEDOM TESFATSION

Applicant

– and –

HEDAT BERHANE

Respondent

Thomas W. Curran, for the Applicant

Steven A. Fried, for the Respondent

HEARD: October 2, 3, 4 and 5, 2012

REASONS FOR JUDGMENT

Blishen, j.a.

Introduction

[1] This case deals with Ms. Berhane’s claim for child support for one child, compensatory spousal support and an equalization of net family property.

[2] The parties agree that before these issues can be decided, the court must determine the valuation date for the purposes of equalization of net family property. Such a determination is also relevant to the determination of child support and spousal support. Therefore, the trial commenced solely on the issue of the valuation date.

Background

[3] The parties had a somewhat unconventional marriage.

[4] They met in 1972 in Addis Ababa, Ethiopia when Mr. Tesfatsion was working as a systems analyst for the Ministry of Education and Ms. Berhane was a university student. They married on August 25, 1974 in Asmara, Eritrea. For the first nine years of their relationship, they resided together in Addis Ababa and had three children: a son, Deress, born March 8, 1976; a daughter, Ariam, born September 27, 1977; and another daughter, Luwam, born April 21, 1983.

[5] Mr. Tesfatsion left his employment with the Ministry of Education prior to the marriage and began working with Shell Oil. This employment continued until July 1980 when he began working with the United Nations Economic Commission for Africa.

[6] Ms. Berhane continued her university studies and received her degree in Economics in 1978. In 1983, she received a scholarship and left Addis Ababa to pursue a Masters degree in the United Kingdom. Baby Luwam was left with Ms. Berhane’s mother and the two other children continued to reside with their father in Addis Ababa. In 1984, Mr. Tesfatsion began constructing a home in Addis Ababa for the family.

[7] In December 1984, Mr. Tesfatsion was transferred to Niger, West Africa and the two older children went to the United Kingdom to attend boarding school. They spent weekends with their mother. One year old Luwam remained with her maternal grandmother in Addis Ababa.

[8] In the fall of 1985, the family was reunited when Ms. Berhane and the two older children, as well as baby Luwam, began residing with Mr. Tesfatsion in Niger. Ms. Berhane remained at home with the three children while Mr. Tesfatsion continued his work with the United Nations. On April 23, 1988, a fourth child, Hiyab-El, was born.

[9] Due to the difficult political situation, the parties decided for the sake of their children, to immigrate to Canada. Therefore, on December 19, 1989, the family immigrated to Canada and took up residence in Toronto where Ms. Berhane’s sister and two brothers lived. The parties were not happy in Toronto and decided to move to Ottawa. In February 1990, prior to the family’s move, Mr. Tesfatsion returned to his work with the United Nations in Niger. He testified that he left approximately $31,000.00 in a bank account for Ms. Berhane and the children.

[10] Ms. Berhane came to Ottawa and rented a two-bedroom apartment. After school finished in June 1990, she and the four children moved to the apartment on Riverside Drive in Ottawa. In September 1990, Mr. Tesfatsion returned to stay with the family. He decided to resign from the United Nations and seek employment in Ottawa. He obtained some part-time work; however, the family was, to some extent, relying on savings to maintain themselves.

[11] After a great deal of soul-searching, the parties decided it would be better for the family if Mr. Tesfatsion requested reinstatement with the United Nations and returned to Africa, where he could continue to work and save funds for the family’s future. It was agreed that Ms. Berhane would remain in Ottawa with the four children, hopefully obtain employment, and pay for the day-to-day necessities for the family. Mr. Tesfatsion was reinstated and in March 1991, returned to his work in Addis Ababa, Africa. Through his work, he was able to obtain an educational allowance for the children and a spousal allowance.

[12] In April 1991, just after Mr. Tesfatsion left, Ms. Berhane obtained employment on a special project with the African Canadian Council and, in March 1992, obtained full-time employment with the Council until September 1993. She then obtained employment as a Program Coordinator for the City of Ottawa until December 2008 when she began working for the federal government.

[13] For 17 years, from March 1991 when Mr. Tesfatsion returned to his work in Africa, until May 2008, the parties did not reside together for more than a few weeks or a month at a time. Ms. Berhane continued to work and support the family on a day-to-day basis. Mr. Tesfatsion occasionally sent money for the family and as the years went by, he contributed to the education expenses for the children. In the meantime, he maintained his employment with the United Nations and amassed significant assets including: property in Addis Ababa and in Eritrea, a U.S. funds investment account, and a significant pension.

[14] During the 1990s and up to 2002, Mr. Tesfatsion returned to reside with his family, usually twice a year in the summer or fall and at Christmas, often staying for a number of weeks at a time and bringing gifts for the family. In addition, the parties maintained ongoing communication. Mr. Tesfatsion sent numerous letters and emails. Ms. Berhane at times responded in writing but more frequently by telephone. In addition, they continued to make joint decisions, largely focussed on the children.

[15] There is a significant dispute between the parties as to the nature of their relationship when they were together two or three times a year and as to the nature of their communication during these years. What is not in dispute is that there was never any formal separation or separation agreement, no court action or court orders regarding support or other issues. The parties did continue to communicate with one another, make joint decisions and reside together at least two times per year. In addition, there was a repeated desire on Mr. Tesfatsion’s part, as a deeply religious man, to maintain the relationship and marriage. As he stated more than once, God hates divorce. As well, there was an undisputed willingness on Ms. Berhane’s part to continue supporting the children day to day on the understanding that Mr. Tesfatsion was saving for the family’s future.

[16] In 1998, there were grave problems in Eritrea due to the war. Mr. Tesfatsion was declared persona non grata and was required to leave the country before September 7, 1998. He left and continued his work with the U.N. in Nairobi, Kenya until March 1999 when he was transferred to Iraq. As previously stated, during this period of time, Mr. Tesfatsion continued to return to Ottawa and reside with the family from time to time.

[17] In 2000, Mr. Tesfatsion became a Canadian citizen. He was considered a “factual resident” of Canada. Ms. Berhane sponsored him and their marital status was confirmed in the sponsorship process.

[18] In 2001, after the parties attended Ms. Berhane’s sister’s wedding together in Asmara, Mr. Tesfatsion requested a sabbatical leave and decided to go back to university in Los Angeles, California to obtain a Master’s degree in Cultural Studies. He began the program in January 2002.

[19] Due to a growing feeling of rejection by his wife, Mr. Tesfatsion filed a petition for the dissolution of the marriage on August 2, 2002 while still residing in Los Angeles. The petition was served on Ms. Berhane at her home in Ottawa. She testified this was completely unexpected and she was shocked. She was not sure what to do but retained counsel and, in order to preserve her right to claim child support and spousal support, she filed a response stating that the date of separation was the date that she had been served, August 15, 2002. After some telephone communication, Mr. Tesfatsion withdrew his petition in June 2003. Again, he stated that, “God hates divorce, and so do I.” He made it clear he wanted to continue the marriage. Ms. Berhane testified that Mr. Tesfatsion expressed his regret, apologized for filing the petition, and renewed his vow to her.

[20] In December 2003, Mr. Tesfatsion finished his degree and returned to his work with the United Nations, this time in Lusaka, Zambia. Some communication with the family continued and the children visited with their father in Lusaka during the summer of 2005.

[21] In November 2004, Ms. Berhane bought a home on Lilibet Crescent, Ottawa in her name alone. On the charge/mortgage document, it was noted that Ms. Berhane was “not a spouse”.

[22] Ms. Berhane recalled a discussion with Mr. Tesfatsion in 2005 about him taking early retirement, although no date was specifically decided upon.

[23] In May 2006, Mr. Tesfatsion did take early retirement from the United Nations and returned to Ottawa. Rather than communicating with his wife, he stayed at the YMCA. He had contact with his children who visited him. It was Mr. Tesfatsion’s belief that Ms. Berhane did not wish him to live with her on Lilibet Crescent. He did not communicate with her and she did not communicate with him. They were at an impasse and, once again, Mr. Tesfatsion considered filing an application for divorce. He informed Ms. Berhane of this in July 2006. Ms. Berhane testified she called Mr. Tesfatsion and suggested marriage counselling, which he refused.

[24] In March 2007, Mr. Tesfatsion bought a home at 178 Forest Glade in Ottawa in his name alone and, in January 2008, he filed a divorce application. Ms. Berhane testified that again, she was completely shocked. She stated she had invested 35 years and had always maintained her dignity and faithfulness towards Mr. Tesfatsion, while at the same time respecting her responsibility to the children. She believed it would be devastating for the children if he pursued his divorce application.

[25] Unbeknownst to Ms. Berhane, her sister, who was residing with her at the time, and her daughter Hiyab-El met with Mr. Tesfatsion to discuss the situation. Hiyab-El testified she told her father that she never had the impression from her mother that he was not welcome to come back and reside with them. After that discussion, Mr. Tesfatsion came to the home, apologized, and begged Ms. Berhane’s forgiveness. The impasse between them was resolved. It was agreed that Mr. Tesfatsion would move in after the couple attended the wedding of Ms. Berhane’s brother in Asmara. Both were happy with the situation, went together to the wedding, shared a bedroom and came back home.

[26] Mr. Tesfatsion moved in to the Lilibet Crescent home on May 1, 2008 and rented out his Forest Glade residence. Mr. Tesfatsion testified he wanted to erase the past and they were very happy together. Unfortunately, the situation did not last and the parties finally separated on May 31, 2009. Mr. Tesfatsion filed a Divorce Application dated January 19, 2010. In her Answer dated April 28, 2010, Ms. Berhane claimed child support, spousal support and equalization of net family property.

Positions of the Parties

[27] As noted above, the parties agreed to a trial of the issue as to the valuation date, prior to calling further evidence on the issues of equalization and support.

[28] Mr. Tesfatsion argues the parties separated long before the final separation on May 31, 2009. When asked at trial what date of separation would be argued, counsel for Mr. Tesfatsion indicated it could be argued that the parties separated in 1991 but, as noted in the Reply filed by Mr. Tesfatsion, he would argue the date of separation was April, 1992 as from that time forward, the parties remained physically separated and there was no reasonable prospect they would resume cohabitation.

[29] Ms. Berhane argues that, although their marriage was unconventional given that they were to a large extent physically separated from March 1991 until May 2008, their separation was due to Mr. Tesfatsion’s pursuit of his career with the United Nations. They always intended to resume cohabitation on a more long-term basis, at the very least when Mr. Tesfatsion retired. It is further argued that despite the difficulties in their relationship, in particular the impasse in communication after Mr. Tesfatsion’s return to Ottawa in May, 2006, the parties did indeed resume cohabitation in May, 2008. Therefore, the final date of separation, May 31, 2009, should be considered the valuation date.

[30] Both parties agree that between May 1, 2008 and May 31, 2009, they were residing together as a married couple in a conjugal relationship.

Law and Analysis

[31] For the purposes of equalization of net family property, s. 4(1) of the Family Law Act, R.S.O. 1990 c. F.3, defines the “valuation date” as the date the spouses separate and there is no reasonable prospect they will resume cohabitation.

[32] “Cohabit” is defined under s. 1(1) of the Family Law Act as meaning: “to live together in a conjugal relationship, whether within or outside marriage.”

[33] In Taylor v. Taylor, (1999), 5 R.F.L. (5th) 162, 1999 14969 (Ont. Sup. Ct.), Whitten, J. notes in para. 4:

Valuation day is therefore when separation and a lack of desire to live in a conjugal relationship coincide. The latter intent appears in the authorities to be equated with a lack of an intent to reconcile. In plain parlance, it would be at the point when a party gives up on the relationship.

[34] In the case at bar, although it is agreed that after Mr. Tesfatsion’s retirement from the United Nations, he and Ms. Berhane re-commenced residing together fulltime in a conjugal relationship on May 1, 2008 and remained in that relationship until May 31, 2009, Mr. Tesfatsion argues that valuation date should be many years earlier, in April 1992. If the Court were to find a valuation date of April 1992, the limitation period for the equalization of net family property would long ago have expired. The onus is on Mr. Tesfatsion to prove an earlier valuation date given the cohabitation of the parties in a conjugal relationship until May 31, 2009.

[35] Mr. Tesfatsion has been unable to provide evidence of a specific triggering event as to the separation of the parties and their intention not to resume cohabitation. In fact, he has provided numerous possible dates of separation in documents filed with the court, as follows:

1. In the petition filed August 2, 2002 in Los Angeles, Mr. Tesfatsion stated that he wished a dissolution of the marriage due to irreconcilable differences and noted the date of separation as December 1989. That petition was subsequently withdrawn;

2. In his Divorce Application filed February 2, 2010, he indicated May 31, 2009 as the date of separation after an unsuccessful reconciliation attempt between June 1, 2008 and May 31, 2009;

3. In his Reply filed August 12, 2010, he noted on page 3 that the parties had separated in April 1992;

4. In his Amended Reply filed January 10, 2011, he noted in para. 54 that the parties were separated from March 1991 to June 1, 2008 and that, as of June 1, 2009, their separation was final. He further noted in the same document at para. 16 that they were separated as of April 1992;

5. In his pension valuation, the pension was valued from the date of marriage to March 31, 1992. In the updated pension valuation, the pension was valued from the date of marriage to January 1991.

[36] As noted above, counsel for Mr. Tesfatsion indicated that, for the purposes of trial, he would argue April 1, 1992 as the valuation date. There was no evidence as to any particular triggering event in April 1992.

[37] A party is not entitled to plead that the valuation date is an unspecified date occurring at some point in a particular time period, or that it is a notional date. The Court does not have discretion under the Family Law Act to find and fix a valuation date based on such criteria. (See Fleming v. Fleming, (2001), 2001 28222 (ON SC), 19 R.F.L. (5th) 274 (Ont. Sup. Ct.).)

[38] The Ontario Court of Appeal in Serra v. Serra, 2009 ONCA 105, 307 D.L.R. (4^th) 1 (C.A.), noted at para. 41:

Whereas other provinces have chosen different mechanisms for giving effect to the policy underlying modern family law legislation – that is, the equal division of family property in recognition of equal contributions to marriage – Ontario deliberately chose a fixed valuation date approach.

[39] Given the overriding policy in the Family Law Act to recognize equal contributions to marriage, it is extremely important for the Court to consider carefully all the circumstances of each individual case objectively.

[40] In Czepa v. Czepa (1988), 1988 8647 (ON SC), 16 R.F.L. (3d) 191 (Ont. S.C.), Killeen J. notes at para. 15:

It is not for a court to expect to find the course of marital conduct to be simple and straight-forward in a given case. Each case of marital discord has its own unique facts. The quest for a valuation date is tied to that date when the marriage is irretrievably broken down and the resumption of cohabitation is not reasonably in the cards. This quest requires the trial judge to look at all the circumstances objectively.

[41] As was noted by Czutrin J. in Newton v. Newton (1995), 1995 17875 (ON SC), 11 R.F.L. (4th) 251 (Ont. U.F.C.), extreme caution should be taken in the establishment of a valuation date as there is a danger that parties will manipulate the date in order to improve their financial positions.

Definition of ‘Valuation Date’

[42] As noted above, s. 4(1) of the Family Law Act outlines two basic elements defining ‘valuation date’: (1) a separation of the parties, and (2) the absence of a reasonable prospect of resumption of cohabitation.

[43] Separation can occur with the parties living under the same roof. However, living under different roofs does not necessarily mean the parties are “separated. As noted by the Court in Strobele v. Strobele, (2005), 34 R.F.L. (6th) 111 (Ont. Sup. Ct.), “separation requires more than living under separate roofs to encompass a cessation of the multi-levelled intricate relationship between couples.”

[44] The overriding 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? The continuation of a relationship requires two people. Either person can end the relationship without the consent of the other. Therefore, in determining the reasonable prospect of the resumption of cohabitation, the Court must objectively consider the unique circumstances of each individual case or each individual couple.

[45] As stated by Whitten J. in Taylor at para. 9:

It is possible that the parties could be truly separated but still entertain an intent to resume co-habitation at some ill-defined time. Until that intent is extinguished, the valuation date would be postponed. This is in keeping with the philosophy of the Act as expressed in the preamble to the statute: “it is desirable to encourage and strengthen the role of the family”. To seize upon the fact of separation without respect for the intention of the parties would discourage those who seek to contemplate the future of a relationship, outside of the pressures of co-habitation.

Separation

[46] As noted in Strobele, a true separation “requires more than living under separate roofs to encompass a cessation of the multi-levelled intricate relationship between couples.”

[47] It is not disputed that Mr. Tesfatsion and Ms. Berhane lived under separate roofs for the majority of the time from March 1991 to May 1, 2008.

[48] In Taylor, Whitten J. refers to the indicia of ‘separation’ as outlined by Weiler J. in Oswell v. Oswell, (1990), 1990 6747 (ON SC), 74 O.R. (2d) 15 (Ont HCJ) as follows:

(1) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms: Dupere v. Dupere (1974), 1974 1848 (NB SC), 9 N.B.R. (2d) 554, 19 R.F.L. 270 (S.C.) [affd (1974), 10 N.B.R. (2d) 148 (C.A.)]; Cooper v. Cooper (1972), 1972 1901 (ON SC), 10 R.F.L. 184 (Ont. H.C.J.). Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart: Dupere, supra.

(2) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium: Dupere, supra; or of repudiating the marital relationship: Mayberry v. Mayberry, 1971 717 (ON CA), [1971] 2 O.R. 378, 18 D.L.R. (3d) 45, 3 R.F.L. 395 (C.A.).

(3) The absence of sexual relations is not conclusive but is a factor to be considered: Dupere, supra; Cooper, supra; Mayberry, supra.

(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: Cooper, supra; Mayberry, supra; McKenna v. McKenna (1974), 1974 2204 (NS CA), 19 R.F.L. 357 (N.S. S.C.); Vogel v. Vogel (1988), 1988 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.

[49] At para. 13 of Taylor, Whitten J. goes on to set out the more basic list outlined by Holland J. in Cooper v. Cooper (1972), 1972 1901 (ON SC), 10 R.F.L. 184 (Ont. HCJ), as follows:

(i) spouses occupying separate bedrooms

(ii) absence of sexual relations

(iii) little, if any communication between spouses

(iv) wife performing no domestic services for the husband

(v) eating meals separately

(vi) no social activities together.

[50] As noted by Whitten J., all relationships are different and all or some of the criteria listed in the jurisprudence may exist within what that particular couple considers to be a normal relationship. What was normal for this particular couple and their usual pattern of married life must be carefully considered in order to determine what would constitute a departure.

[51] Given the nature of the relationship between Mr. Tesfatsion and Ms. Berhane, it is important to consider their “normal”. In that regard, I note the following:

1. From the time Mr. Tesfatsion left Ottawa in March 1991to return to work with the U.N. in Africa, the parties resided separate and apart for the majority of the year. Mr. Tesfatsion came home to Ottawa and stayed with the family, according to the evidence of their oldest son, Deress, usually two times per year in the summer or fall and at Christmas;

2. Although Mr. Tesfatsion testified about a few occasions when he felt his wife had treated him coldly and was rejecting towards him, the evidence of the couple’s two children, Deress and Hiyab-El, was to the contrary. I found both Deress and Hiyab-El to be straightforward, credible witnesses who love their father and maintained their objectivity. They both testified, as did Ms. Berhane, that when Mr. Tesfatsion came to stay with the family for a few weeks each year, he would bring gifts and the parties were very excited to see one another;

3. Deress, Hiyab-El and Ms. Berhane further testified that when Mr. Tesfatsion stayed with the family, he and Ms. Berhane would sleep together in the same bedroom. This was acknowledged by Mr. Tesfatsion, although he did relate one occasion when he was asked to sleep in Hiyab-El’s bedroom, which was denied by Hiyab-El. Nevertheless, it was acknowledged they had sexual relations from time to time on his visits. There is no evidence that either party ever had a sexual relationship with anyone else;

4. While with the family, Mr. Tesfatsion and Ms. Berhane would eat meals together, attend church together, and both shared in household chores. Once again, Mr. Tesfatsion testified that, at times when attending church, Ms. Berhane asked him to sit in a separate area, which was disputed by Deress and Ms. Berhane. I find that the couple attended church together on most occasions, ate their meals together as a family, and both performed household chores when Mr. Tesfatsion was home;

5. Deress testified that his father attended his parent/teacher interviews when home and Hiyab-El indicated that her father attended her track and field meet. Both children considered theirs a normal family life when their father was home. Although they did not socialize a lot, the family was closely knit and the couple had a normal relationship, according to their children. Hiyab-El testified that she never heard either party say a negative work about the other;

6. When Mr. Tesfatsion was in Africa working for the United Nations, he communicated on a regular and consistent basis with Ms. Berhane through letters and emails. Although some of his frequent correspondence related concerns regarding the relationship and Ms. Berhane, these letters were often followed by others professing his love for her and thanking her for carrying on and raising the children without him. Mr. Tesfatsion testified that Ms. Berhane rarely communicated with him, but it was her evidence that she communicated mostly by telephone regarding the needs of the children. Given that many of Mr. Tesfatsion ‘s letters were extremely long and often full of his religious beliefs, as well as complaints about her, she often did not respond in writing. It is not disputed that Ms. Berhane sent Mr. Tesfatsion gifts and the children’s’ report cards, as confirmed by a letter sent to her in September 1995. I find there was ongoing communication between the couple regarding decisions that needed to be made as to the children’s’ education, some property issues, investments, and the family in general;

7. From time to time, Mr. Tesfatsion sent funds largely for gifts and for the children’s education;

8. In addition to Mr. Tesfatsion visiting in Ottawa approximately two times per year, Ms. Berhane went to Ethiopia in 1995 and spent three weeks residing with Mr. Tesfatsion and vacationing with him at a resort. It was her evidence they had a wonderful holiday and were happy together;

9. In addition, the couple attended a number of weddings together in Africa. For example, in August, 2001 they attended Ms. Berhane’s sister’s wedding in Asmara;

10. In addition to communicating with one another, Mr. Tesfatsion continued to send Ms. Berhane forms for her to complete so he would continue to receive the United Nations education allowance for the children and the spousal allowance;

11. Ms. Berhane testified that all of her family and relatives considered Mr. Tesfatsion part of the family and like a son. As noted above, they attended family weddings together with Ms. Berhane’s relatives and, in addition, a number of Ms. Berhane’s relatives lived with Mr. Tesfatsion from time to time when he was residing in Africa;

12. In 2000, Mr. Tesfatsion became a Canadian citizen. He testified that he was considered a “factual resident” of Canada. Ms. Berhane sponsored him and their marital status was confirmed in the sponsorship papers;

13. In Ms. Berhane’s income tax returns from 1992 to 2010, she indicated her status as “separated”. This became a pattern for her and a matter of course in filing her income tax returns based on the advice of her accountant. Again, this was normal behaviour for her and, although a factor to consider, is not determinative.

[52] Based on the above factors, I find that, although physically separated for most of the year, Mr. Tesfatsion and Ms. Berhane continued the usual pattern of their married life for many years. The question is: Was there ever a change in this pattern to the extent that the parties could be considered separated?

[53] Although the parties attended a family wedding together in August 2001, it was Mr. Tesfatsion’s evidence that he was feeling increasingly lonely and rejected by his wife. Therefore, when he asked for a sabbatical leave to return to university in 2001, he decided to go to Los Angeles for his Master’s in Cultural Studies as opposed to returning to Ottawa. He began those studies in January 2002 in Los Angeles and completed his degree in December 2003. I find that after Mr. Tesfatsion began his studies in January 2002, there was a change in the pattern of behaviour and the relationship as follows:

1. There is no direct evidence that Mr. Tesfatsion continued his twice-yearly visits to Ottawa. The only evidence of the couple being together is at the August 2001 family wedding in Asmara;

2. There appears to be less communication between the parties – very few letters and emails;

3. In August 2002, Mr. Tesfatsion filed an application for dissolution of the marriage due to irreconcilable differences and Ms. Berhane filed a response requesting support and division of property. As noted above, that Divorce Application was ultimately withdrawn;

4. Mr. Tesfatsion continued to write to his children more frequently than to his wife and invited them all to come to Lusaka, Zambia where he was posted with the U.N. after finishing his degree in December 2003. Eventually, some of the children went for a visit with their father in the summer of 2005 but Ms. Berhane did not;

5. In November 2004, Ms. Berhane bought her own home at 159 Lilibet Crescent in Ottawa. The home was registered in her name alone, as was the mortgage. On the mortgage document, it was indicated: “I am not a spouse”;

6. After a discussion with Mr. Tesfatsion about early retirement, Ms. Berhane did not hear anything further from him in this regard;

7. In May 2006, Mr. Tesfatsion did take early retirement and returned to Ottawa but did not reside with Ms. Berhane. He stayed at the YMCA and in a hotel. At this point in time, there was a complete impasse between the parties and no communication either way, although the children still continued to see their father and visit with him;

8. In July 2006, Mr. Tesfatsion wrote Ms. Berhane a letter indicating he was considering another Divorce Application. Ms. Berhane testified that she called Mr. Tesfatsion. He claimed that she would not let him reside with her in the home, which she denied but suggested marriage counselling, which Mr. Tesfatsion refused;

9. In March 2007, Mr. Tesfatsion bought his own home at 178 Forest Glade in Ottawa;

10. On January 21, 2008, Mr. Tesfatsion filed another Divorce Application. Through the intervention of Ms. Berhane’s sister and daughter Hiyab-El, Mr. Tesfatsion did not pursue the Application. This appeared to be a turning point in the relationship. Mr. Tesfatsion came to Ms. Berhane’s home, apologized, and according to her, begged her forgiveness. It was agreed that Mr. Tesfatsion would move into the Lilibet Crescent residence after they attended a family wedding in Asmara. On May 1, 2008, the parties once again began residing together and shared a bedroom. Both testified they were happy. Mr. Tesfatsion rented out the Forest Glade home and they continued residing in the Lilibet Crescent home until the final separation on May 31, 2009.

[54] Based on the above factors, I find a change in this couple’s pattern of behaviour and a difference in their relationship between January 2002 and the spring of 2008 when Mr. Tesfatsion came to the home, apologized and the parties agreed to reside together. There was no evidence as to the exact date of this discussion. I find they were separated during this six-year period.

Prospect of Resumption of Cohabitation

[55] A determination of the “reasonable prospect of the resumption of cohabitation” or reconciliation is based on the intention of the parties. It is important to consider objective criteria in order to determine the true intention of the parties.

[56] In Torosantucci v. Torosantucci (1991), 1991 12851 (ON SC), 32 R.F.L. (3d) 202 (Ont. U.F.C.), Beckett J. outlined the considerations in determining “a reasonable prospect of reconciliation” as follows at page 4:

A reasonable prospect of reconciliation must be more than wishful thinking on the part of either party. There must be more than residual affection that may linger by one or both of the parties. The Act does not speak of a "prospect" of reconciliation but a "reasonable prospect". The Oxford Concise Dictionary 7th Edition, defines prospect as "expectation, what one expects." The question is whether a reasonable person, knowing all of the circumstances, would reasonably believe that the parties had a prospect or expectation of resuming cohabitation. I do not doubt that Mr. and Mrs. Torosantucci wished that their marriage would have been otherwise than it was. I accept, on the part of Mr. Torosantucci, that he retained, and continues to retain, some degree of affection for her. But wishful thinking is not the stuff of reconciliation. There must be some indication or step taken by both of them in that direction. In this case, no attempt was made to mediate or reconcile their differences, no counselling from third parties was sought and most importantly no meaningful discussions ever took place between them as to if, how or when their marriage might be put back together.

[57] There is no question in the case at bar that Mr. Tesfatsion always retained a degree of affection for Ms. Berhane and wished to continue the relationship. He stated on a number of occasions that “God hates divorce and so do I.” For her part, Ms. Berhane also expressed a wish for the relationship to continue. The question is: Were any active steps taken by the parties or was there any explicit indication that they were working towards a resumption of cohabitation?

[58] I find that during the separation between January 2002 and May 1, 2008, there was a reasonable prospect of the resumption of cohabitation based on the following factors:

1. Mr. Tesfatsion’s wish to continue the relationship, as expressed both directly and in writing to his children;

2. Ms. Berhane’s statements to her children that Mr. Tesfatsion was welcome to continue residing with her;

3. The children’s belief that the relationship continued and their parents would eventually resume cohabitation;

4. The withdrawal by Mr. Tesfatsion of his Application for dissolution of the marriage filed in August 2002 in California. Upon withdrawing the application in June 2003, Mr. Tesfatsion indicated he wanted to save his marriage and hoped the parties would reconcile. Ms. Berhane indicated she felt the same way and testified Mr. Tesfatsion told her he regretted his actions and renewed his vow to her. In a letter to his children in December 2003, he indicated that the family would remain intact;

5. There was discussion between the parties in 2005 regarding Mr. Tesfatsion’s proposed early retirement. Although no date was determined, Ms. Berhane testified that she was looking forward to it because they would finally be together again;

6. After coming to Ottawa in May 2006 residing first at the YMCA and then purchasing his own home, Mr. Tesfatsion continued the communication with his children. Hiyab-El testified, although her father felt Ms. Berhane did not want him back in the home, that was not and had never been, Hiyab-El’s impression;

7. Ms. Berhane testified she suggested marriage counselling to Mr. Tesfatsion in a telephone conversation but he refused at that point in time;

8. On November 7, 2006, Mr. Tesfatsion sent an email to his son Deress indicating he had great hope the parties would be together again and great love and care for his wife. Ms. Berhane continued to believe the marriage was alive;

9. In January 2008, Mr. Tesfatsion filed a Divorce Application and, again, Ms. Berhane was shocked. Eventually, after the intervention of Ms. Berhane’s sister and daughter, Mr. Tesfatsion withdrew the Application. Mr. Tesfatsion spoke with Ms. Berhane, apologized and begged forgiveness. As previously stated, it was agreed he would move into the Lilibet Crescent home after the parties attended a wedding in Asmara;

10. Throughout this time, Ms. Berhane never pursued an action for any kind of relief. It was always her belief the parties would resume cohabitation and share the assets that were obtained by Mr. Tesfatsion during his long career with the United Nations. This was her understanding of the agreement between the parties and, for that reason, Ms. Berhane largely supported the four children on her own. Mr. Tesfatsion contributed some funds from time to time, along with gifts and payments for education expenses.

[59] Based on the indicators listed above, I find that there was always a reasonable prospect of reconciliation and, in fact, the parties did reconcile on May 1, 2008.

Conclusion

[60] Although there was a separation of the parties from January 1, 2002 to the spring of 2008, I find there was never the loss of a desire on the part of either Mr. Tesfatsion or Ms. Berhane to resume cohabitation. Therefore, I find the valuation date, as defined in s. 4(1) of the Family Law Act for the purposes of the division of net family property, to be the date of the final separation with no chance of the resumption of cohabitation, May 31, 2009.

[61] Given my findings in this regard, I am hopeful the parties will be able to resolve the issues of division of property and support. If that is not possible, they are to notify the Trial Coordinator within 30 days as to the remaining issues and to secure a date to continue the trial on those issues, at the latest during the May 2013 sittings. A further mid-trial Settlement Conference may also be scheduled.

[62] If necessary, costs on the issue of a determination of the valuation date will be determined at the end of the trial or upon a resolution of all remaining issues after further submissions of counsel.

Blishen J.

Released: January 7, 2013

COURT FILE NO.: FC-08-0079-1

DATE: 20130107

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ASGHEDOM TESFATSION

Applicant

– and –

HEDAT BERHANE

Respondent

REASONS FOR JUDGMENT

Blishen J.

Released: January 7, 2013