COURT FILE NO.:1361/17

DATE: June 21, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dhuha Mahmood Alwan Al-Sajee

Applicant

– and –

Qutaiba Amir Tawfic

Respondent

David Sherman, for the Applicant

Kirsten Hughes and Nigel Smith, for the Respondent

HEARD: September 13-14, 2018; October 3-31, 2018; November 1-2, 2018; December 2 and 8, 2018; February 4-5 and 7-8, 2019

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

PART I: INTRODUCTION

[1] The Applicant and Respondent are married and have two children, namely a daughter Rand Qutaiba Amer, born June 9, 2003 (“Rand”) and a son, Abdullah Qutaiba Amer, born April 21, 2005 (“Abdullah”). I outline the complex history of their relationship in further detail below. The parties are now separated, and the Applicant commenced this Family Law application on September 22, 2017. Her claims include custody, access, child and spousal support and equalization of net family property (“equalization”).

[2] One of the major challenges in moving this case forward has been that the parties disagree on their separation date. This issue is relevant to the claims for divorce, spousal support and equalization. The Applicant alleges that the separation date was September 9, 2017, whereas the Respondent claims that the parties have been separated for all purposes since March 7, 2014. On June 26, 2018, Madsen J. directed a trial of the discrete issue of the parties’ separation date, in the hope that a judicial determination of this question would facilitate a resolution of the remaining issues. I presided over this trial over several days spanning from September 13, 2018 until February 8, 2019.

[3] Although the order of Madsen J. directing this trial referred generally to the parties’ “date of separation,” some clarification is required respecting the scope of the trial. As I will discuss in further detail below, there are distinct inquiries required to properly address the “separation date” for the purposes of the claims for divorce, spousal support and equalization. Specifically, the issues that I must determine are as follows:

1. For the purposes of determining whether the parties are entitled to a divorce pursuant to section 8(1) of the Divorce Act, R.S.C. 1985, c. 3 (2^nd Supp.) on the ground of a breakdown in their marriage, it is necessary to ascertain when they began to live “separate and apart” within the meaning of sections 8(2)(a) and 8(3) of the Act.

2. Although the parties submit that entitlement to a divorce is established even if the Applicant’s alleged later separation date of September 9, 2017 is accepted, the question of when they began to live separate and apart must nonetheless be determined because it is also relevant to the Applicant’s spousal support claim. This is so because section 15.2(4)(a) of the Divorce Act stipulates that one of the relevant factors in deciding the issue of spousal support is “the length of time the parties cohabited.” The determination of when cohabitation ended involves ascertaining when the parties began to live separate and apart within the meaning of the Act.

3. In addition, if the parties began to live separate and apart but then resumed cohabitation and reconciled at any time prior to their final separation date, it is necessary for the purposes of the spousal support analysis to make findings respecting the dates of each reconciliation and subsequent separation date. As I will discuss, this requirement flows from case-law which has established that brief periods of separation before a final separation may need to be deducted from the total period of cohabitation for spousal support purposes, depending on the facts of the case.

4. Finally, for the purposes of equalization, the parties require a determination of the date as of when their respective net family properties should be calculated and equalized under the Family Law Act, R.S.O. 1990, c. F-3, as am. The definition of “net family property” in section 4(1) of the Family Law Act refers to this date as the “valuation date.” Section 4(1) defines “valuation date” as the earliest of 5 possible dates. For the purposes of this case, the relevant date as referenced in subsection 1 of that definition is “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”

[4] For the reasons that follow, I have concluded that the parties began to live separate and apart on March 7, 2014, that they did not resume cohabitation or reconcile at any point after that date, and that there was no reasonable prospect after that date that they would resume cohabitation. Accordingly, the only separation date for the purposes of the divorce and spousal support claims is March 7, 2014, and this is also the valuation date for the equalization of the parties’ respective net family properties.

PART II: GENERAL BACKGROUND FACTS

[5] A review of the parties’ relationship background and historical living arrangements is important in this case, because the determination of whether spouses were cohabiting or separated at any given time requires an understanding of their historical relationship dynamics, routines and residential patterns.

[6] The Applicant was born on October 9, 1976, and the Respondent was born on May 5, 1975. They are both originally from Iraq, and they worked as physicians in their home country before coming to Canada. The Applicant is a pathologist and the Respondent is an anesthesiologist. The parties were married in Iraq on July 18, 2001. They began to cohabit on August 5, 2002. The child Rand was born on June 9, 2003, and the Applicant became pregnant with Abdullah in the summer of 2004. The parties separated for the first time in either August or September 2004, during the Applicant’s pregnancy. Abdullah was born on April 21, 2005, following the separation. Both children remained in the Applicant’s care after the separation.

[7] The parties were divorced in Iraq in August 2005. The Applicant completed a Master’s degree in Histopathology that year and began to work as an Assistant Lecturer at the University of Al-Nahraim. In late 2006, she went with the children to Oman to complete the examination required for her to qualify as a General Practitioner. She began to work as a General Practitioner after successfully completing her examination. The Respondent also went to Oman at some point to work at the Sultan Qaboos University Hospital in Muscat, Oman.

[8] The parties reconciled while they were in Oman, and they remarried on May 26, 2007 in Oman. Following their remarriage, the Applicant moved to be near the Respondent’s place of work at the Sultan Qaboos University Hospital in Muskat. She assumed a locum position as a pathologist at the University Hospital at that time and progressed to more senior positions in the Pathology Department of the hospital over time.

[9] The parties and children arrived in Canada as landed immigrants in May 2010. They remained for approximately 40 days and then returned to Oman. The family returned to Canada for a brief period of time in October 2010, because the Respondent completed a medical observorship at the Hospital for Sick Children in Toronto. The parties and the children returned to Canada once again in August 2011 and established a residence at 1001 Main Street West in Hamilton, Ontario. The Respondent stayed in Hamilton with the family until November or December 2011 but then returned to Oman to work. The Applicant remained with the children in Hamilton, and in September 2011, she began a Master’s in Science degree at McMaster University in Hamilton.

[10] The Respondent obtained a fellowship in Anesthesiology in Ottawa in 2012, and he therefore returned to Canada sometime in the spring or summer of 2012. He rented a small apartment for himself in Ottawa and moved there in early July 2012. The Respondent worked in Ottawa from July 2012 until approximately June 2013. During that period of time, the Applicant remained with the children in Hamilton while she completed her Master’s in Science degree. The Respondent returned regularly to Hamilton to visit with the family, typically on alternate weekends and whenever he could get additional time off work. The Applicant and children visited with the Respondent in Ottawa on at least one occasion for approximately a week.

[11] The Respondent obtained a fellowship in Anesthesiology in London, Ontario in June 2013 and moved to London to assume this position in July 2013. He rented a one bedroom apartment in London on Windermere Road. The Applicant remained in Hamilton with the children at that time, because she had begun her PhD Studies at McMaster University in September 2012. From July 2013 until March 7, 2014, the Respondent continued to see the Applicant and children as often as his work schedule permitted. Initially, the Respondent returned to Hamilton on a regular basis to see the family, but commencing a few months after his move, the Applicant started to take the children to London for visits there as well. After that point, the family was together for most weekends and during holiday periods. If the Applicant and children went to London, they would usually leave Saturday afternoon because the children had Arabic school and Abdullah usually had water polo on Saturday morning. These residential and visitation arrangements continued until March 7, 2014.

[12] The family’s situation changed dramatically on Friday March 7, 2014. On that date, the Respondent returned to Hamilton for a family visit and the parties became embroiled in an argument that became physical. The Respondent was charged with assault following this incident. The parties recounted very different versions of the reasons for the argument and what exactly transpired during the dispute. According to the Applicant, the argument related to her decision to fast on that day for Ramadan. She described the events of March 7, 2014 as follows:

1. The Respondent did not confirm whether he would be returning to Hamilton on Friday March 7, 2014 for a visit. She had started to fast on the Thursday for Ramadan, and when the Respondent did not commit to returning home on the Friday, she decided to continue her fast until 6:00 p.m. on the Friday.

2. The Respondent eventually decided to return to Hamilton and arrived at the Main Street residence at approximately 5:30 p.m. According to the Applicant, the Respondent became very angry at her when he learned that she was still fasting.

3. She told the Respondent that her fast would end at 6:00 p.m. and that she would prepare a meal for the family at that time. However, the Respondent was unhappy with this plan, stating that he wished to take the family roller skating by the waterfront.

4. The Applicant alleged that she then approached the Respondent to kiss him, but that the Respondent punched her on the face, pulled her hair and threw her on the floor in the kitchen.

5. According to the Applicant, she then ran from the apartment to a neighbour’s residence and called the police. The Respondent was charged with assault later that evening.

[13] The Respondent’s version of the dispute on March 7, 2014 was markedly different. He stated in both his Answer and Claim and during his testimony at trial that the argument on this date developed because the Applicant announced that she wished to take the children to Baghdad without him. He did not consent to her travelling with them on her own outside of Canada, because he alleged that the Applicant had absconded with the children on two occasions in the past, in 2004 and then again in 2006. At trial, he described the events leading to the argument and the details of the dispute on March 7, 2014 as follows:

1. He stated that he had spoken to the Applicant several weeks earlier about his disappointment with their living arrangements. He had become frustrated that he continued to live in a different city from his family, and indicated to the Applicant that he did not feel he could continue in the relationship in this manner.

2. On March 7, 2014, the parties agreed to have a late lunch with each other. However, when he spoke to the Applicant on his way home, she indicated that she was fasting. The Respondent testified that he was upset about this, because the Applicant had a problem with her kidney which made it very difficult for her to fast.

3. According to the Respondent, the Applicant then told him that her father, who lived in Baghdad, had become very ill and may be admitted to the intensive care unit. She indicated that she wished to take the children to Baghdad to see him. When the Respondent returned home, the Applicant then asked him again about her proposed trip with the children to Baghdad. He testified that he did not support this proposed trip because he was very worried about the political situation in Iraq, and he had concerns that the Applicant was in fact planning to abscond once again with the children to Iraq.

4. The Respondent testified that the altercation on March 7, 2014 ensued because he refused to consent to the Applicant taking Rand and Abdullah to Baghdad without his presence. According to the Respondent, the Applicant then stated that she would take the children regardless of his consent. In response to this comment, the Respondent went into the parties’ bedroom to retrieve the children’s passports as well as a bag in which he kept his certificates. The Respondent testified that the Applicant became very upset and began to scream when she saw that he had the passports. He tried to leave the apartment, but the Applicant tried to stop him and began pulling the strap of the bag that he was carrying. He tried to open the door, and the Applicant tried to push the door shut in an attempt to stop him from leaving. The Respondent testified that the Applicant then told him that if he was a man, he should divorce her before leaving. She then said “the F word” in front of the children. According to the Respondent, he told the Applicant at that point that she was divorced, which is how a divorce is effected according to the Islamic faith. He stated that the Applicant became extremely agitated, began to scream and tried to stop him from leaving the apartment again. The Respondent acknowledged that he pushed the Applicant away at that point so that he could leave, and that the Applicant fell to the ground, but he denied having punched her or pulled her hair. He relayed that he then left the apartment, and that he could hear the Applicant screaming and throwing items in the apartment after he left. He was charged with assault later that day.

5. The Respondent testified that he had sustained marks around his neck as a result of the Applicant pulling on his bag, and that he had to wear a scarf around his neck afterwards to conceal his injuries.

[14] The terms of the Respondent’s release in relation to the assault charge prohibited him from having any direct or indirect contact with the Applicant. Less than one month after the Respondent was charged, the Applicant wrote a letter dated April 2, 2014 to the Crown Attorney requesting that the charge be withdrawn. Ultimately, the Crown did withdraw the charge on July 17, 2014, subject to the Respondent entering into a two year peace bond pursuant to the court’s common law preventative justice power.

PART III: POSITIONS OF THE PARTIES

[15] As I have indicated, the Applicant’s position is that the parties lived apart for a short period of time from March 7, 2014 until mid-July 2014, due to the Respondent’s assault charge and the no-contact terms of his release. However, she alleges that they remarried and completely resumed their normal lives as husband and wife shortly after the Crown Attorney withdrew the assault charge on July 17, 2014. The Applicant asserts that her relationship with the Respondent did not begin to unravel on a permanent basis until August, 2017, when she spent a week in London to do an observorship in pathology. According to the Applicant, the parties had a major argument at the Respondent’s office on August 11, 2017, because she acquired the impression that the Respondent did not want his staff and colleagues to see or meet her. She testified that she returned to the Respondent’s condominium after the fight and began searching through his papers and records. According to the Applicant, she learned at that point that the Respondent had purchased a farm property and that his income was much higher than she had thought it to be. She testified that she returned to London for the last time with the children for the weekend of September 8, 2017, and that she decided to separate from the Respondent on a final basis on September 9, 2017, when she left his condominium that weekend. By way of general overview, she asserted the following in support of her position respecting the separation and valuation date:

1. She claimed that the Respondent did not clearly tell her that he was divorcing her following their argument on March 7, 2014, and that in any event, the parties remarried shortly after the assault charge was withdrawn.

2. She stated that the Respondent continued to see her and the children on a regular basis after July 2014, with her going to London with the children or the Respondent coming to Hamilton to visit.

3. She alleged that the parties attended a wedding together in August 2014 and spent the night together in a hotel on that occasion.

4. She stated that the parties remained sexually intimate until August 2017.

5. She acknowledged that she contemplated separating from the Respondent leading up to the fall of 2015, and that she talked to the Respondent about her concerns respecting their relationship at that time. However, she alleged that the Respondent talked her out of separating, promised to make changes, gave her money to buy a car and undertook to participate in marital counselling.

6. She described family trips which she and the Respondent took with the children to Lebanon in December 2015 and to Barcelona in March 2016, and asserted that they made those trips as a couple.

7. She also described family activities that she and the Respondent engaged in with the children after July 2014, including outings, an Eid celebration and birthday celebrations for her and the Respondent.

8. The Applicant also claimed that she and the Respondent engaged in active efforts to secure employment for her in London, so that the parties could be in the same city and live together in the same residence on a full-time basis.

9. The Applicant asserted that the financial arrangements which the Respondent had historically made for the support of her and the children resumed as usual after the criminal charge was withdrawn.

10. She also adduced evidence respecting counselling which she and the Respondent participated in with Mr. Dieter Staudinger, and claimed that the purpose of this counselling was to address the problems in the parties’ relationship and support their efforts to remain together as a couple.

11. The Applicant acknowledged that she noted her relationship status to be “separated” on her Income Tax Returns from 2014 onward and on other important documents. However, she blamed the Respondent and others for these false statements.

[16] As I have indicated, the Respondent’s position is that the parties separated on a final and permanent basis on March 7, 2014, and that there was no reasonable prospect that they would resume cohabitation after that date. He submitted the following in support of his position:

1. He was adamant that he divorced the Applicant religiously according to the Islamic faith and practice at the end of the parties’ argument on March 7, 2014.

2. He adamantly denied that there was a religious remarriage in July 2014.

3. He acknowledged that both he and the Applicant attended the wedding of mutual friends in August 2014, but denied that they attended together as a couple.

4. He asserted that although the parties shared certain activities and special occasions with the children after March 2014, including trips to Lebanon and Barcelona, they did so as part of a respectful and civil separation and for the benefit of the children rather than as a couple.

5. He highlighted numerous government and other documents on which the Applicant noted from 2014 onward that she was separated, and adduced evidence showing that he had also described himself as separated on important documents since March, 2014.

6. He testified in detail about how the arrangements for the financial support of the Applicant and the children changed after March 2014.

7. He adamantly denied that the parties had been sexually intimate since March 7, 2014.

8. He acknowledged that the parties had stayed overnight at each other’s homes several times since July 2014. However, he provided explanations for those overnight stays and claimed that they were not evidence of a reconciliation or any attempt at such.

9. With respect to the counselling with Mr. Staudinger, the Respondent asserted that from his perspective, the purpose of the counselling was to support the Applicant with challenges that she was experiencing and to work on issues relating to the parties’ separation. He denied that he participated in the counselling to repair his relationship with the Applicant or to work towards a reconciliation.

PART IV: THE LAW

I. “SEPARATION” FOR THE PURPOSES OF ENTITLEMENT TO DIVORCE AND THE SPOUSAL SUPPORT ANALYSIS UNDER THE DIVORCE ACT

A. Statutory Provisions and General Principles

[17] As discussed at the outset of these Reasons, the parties’ final separation date is relevant for deciding whether they are entitled to a divorce, to the analysis of spousal support under the Divorce Act, and to the valuation date for the purposes of equalization under the Family Law Act. With respect to divorce entitlement, section 8(1) of the Divorce Act provides that the court may grant a spouse or both spouses a divorce on the ground that there has been a “breakdown of their marriage:”

Divorce

8 (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

[18] Section 8(2) of the Divorce Act outlines the circumstances which establish a breakdown of a marriage, as follows:

Breakdown of marriage

8(2) Breakdown of a marriage is established only if

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

[19] Section 8(2)(a) is the relevant section in this case for the purposes of determining entitlement to a divorce. It must be read in conjunction with section 8(3), which addresses the meaning of “separate and apart,” and how the relevant one year period of separation should be calculated, as follows:

Calculation of period of separation

8(3) For the purposes of paragraph (2)(a),

(a) 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; and

(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

[20] Based on these provisions, where a divorce claim is based on the parties’ separation, and a party alleges that there has been a period of reconciliation before a final separation, the court must address the following issues:

1. When did the parties first begin to live separate and apart? This involves a determination of when the parties began to live apart, and at least one of them had an intention to live separate and apart from the other.

2. Did the parties resume cohabitation after they separated for a period of or periods totalling more than 90 days, with reconciliation as the primary purpose of the resumed cohabitation?

3. If the answer to question 2 is yes, the calculation of the one year period of separation for the purposes of the divorce claim must start afresh, and the court must determine the final separation date of the parties in order to decide if the ground for divorce has been established.

4. Finally, the court must be satisfied that the parties continued to live separate and apart when the application was commenced.

[21] It is clear from the above that the concept of “cohabitation” is key to the determination of the separation date for divorce entitlement purposes, since resumed cohabitation with reconciliation as a primary purpose for more than 90 days may push the final separation date for divorce purposes forward. Whether the spouses cohabited is also relevant to whether they were living “apart.”

[22] The determination of the parties’ separation date or dates is also necessary for the analysis of any spousal support claim, since one of the factors which the court must take into consideration in making a spousal support order is the length of time the parties cohabited. Sections 15.2(1) and 15(4) of the Divorce Act are the relevant provisions in this regard:

Spousal Support Order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Factors

15(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

[23] As with the issue of divorce entitlement, the concepts of “cohabitation” and living “separate and apart” are interdependent for the purposes of the spousal support analysis; the determination of when cohabitation ends is linked to when the parties began to live separate and apart, and vice versa (Neufeld v. Neufeld, 2019 ONSC 1277 (S.C.J.), at para. 62). For the purposes of the spousal support analysis, it may be necessary to determine any “interim” separation dates as well as the parties’ formal, final separation date. This requirement flows from the decision of the Ontario Court of Appeal in Whalen-Byrne v. Byrne, 2017 ONCA 729 (C.A.), in which the court concluded that brief “interim separation” periods prior to a final separation, during which there is the possibility of a resumption in cohabitation, may need to be deducted from the total period of cohabitation for spousal support purposes, but will not necessarily remove previous periods of cohabitation from the calculation of the total cohabitation period.

[24] It flows from the foregoing that the determination of any relevant separation date or dates for the purposes of divorce entitlement and any spousal support claim requires an understanding of the indicia of when spouses are living “separate and apart,” and when they are “cohabiting” or have resumed cohabitation for the primary purpose of reconciliation. Given the interdependence of the notions of “living separate and apart” and “cohabitation” under the Divorce Act, the case-law respecting the meaning of each is relevant to the other. I turn now to the law respecting these two concepts.

B. General Principles and Indicia of “Living Separate and Apart”

[25] Dealing first with the determination of when parties are “living separate and apart,” the case-law establishes several principles and factors to consider in deciding this issue. The decisions relating to the determination of the “valuation date” for the purposes of equalization are of assistance, since as I discuss below, the first part of the analysis respecting the valuation date involves finding when the parties separated. It has been held that the factors that are relevant to resolving when parties separated for valuation date purposes apply equally to the determination of when parties began to live separate and apart for the purposes of sections 8(2)(a) and 8(3) of the Divorce Act (Oswell v. Oswell, 1990 CanLII 6747 (ON SC), 1990 CarswellOnt 278 (H.C.), at para. 12; aff’d (1992), 1992 CanLII 7741 (ON CA), 12 O.R. (3d) 95 (C.A.); Greaves v. Greaves, 2004 CarswellOnt 2408 (S.C.J.), at paras. 30 and 34; Torosantucci v. Torosantucci, 1991 CanLII 12851 (ON SC), 1991 CarswellOnt 262 (U.F.C.); Plimmer v. Burke, 2016 ONSC 7963 (S.C.J.) at para. 14).

[26] Ascertaining when spouses begin to live separate and apart requires a careful analysis of the unique realities of their relationship, routines, social and other habits and practices and living arrangements over time. In deciding how much weight, if any, to give to any particular factor, the court must carefully assess whether there have been any real changes in regard to that factor since the parties were clearly together in a conjugal relationship. In addition, because of the particular dynamics of each relationship, no one factor will be determinative of whether spouses are living separate and apart; a global analysis and weighing of all factors is required. Subject to these caveats, the relevant principles and considerations that emerge from the case-law can be summarized as follows:

1. There are two aspects to spouses living separate and apart. First, they must live apart from each other, and second, there must be an intention on the part of one or both of them to live separate and apart from the other (Oswell; Greaves).

2. To live “apart” requires a physical separation between the parties (Oswell, at para. 13). This means that the parties cannot be cohabiting in a conjugal relationship (Greaves). However, the fact that they continue to reside in the same home together does not necessarily mean that they are not living apart. Spouses can be living separate and apart under the same roof. The determination of whether parties who reside in the same home are living separate and apart involves a consideration of all relevant factors, including whether they are occupying separate bedrooms and/or areas of the home and any stated reasons for remaining in the same residence (Oswell, at para. 12; Greaves, at para. 34; Neufeld, at para. 6; S.(K.L.) v. S.(D.R.), 2012 NBCA 16 (C.A.), at para. 20).

3. By the same token, the fact that the spouses have two residences and spend significant periods apart in the two homes is not determinative of whether they are living separate and apart. As the Ontario Court of Appeal stated in Lachman v. Lachman, 1970 CarswellOnt 122 (C.A.), at para. 12, spouses in these circumstances will only be considered to be living separate and apart if at least one of them intends to end the marital relationship. Where the parties live primarily in separate residences, the court must examine all of the other circumstances surrounding their relationship to determine whether they were, in fact, living separate and apart. The reasons for maintaining separate residences will be one important consideration (Rosseter v. Rosseter, 2013 CarswellOnt 2013 (S.C.J.), at para. 14). Another circumstance which may be relevant in this situation is whether the parties have kept personal items at each other’s residences (Rosseter). The implications of maintaining more than one residence are discussed in greater detail below in the discussion about “cohabitation.”

4. In order to establish the requisite intent to live separate and apart, there must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the matrimonial relationship (Oswell, at para. 14; Greaves, at para. 34). The term “consortium” does not have a precise or complete definition, but refers broadly to the companionship, love, affection, comfort, mutual services and support, and sexual relations typically involved in the marital relationship (Kungl v. Schiefer, 1960 CanLII 22 (ON CA), [1961] O.R. 1, (C.A.), at para. 11; Molodowich v. Penttinen, 1980 CarswellOnt 274 (Dist. Ct.), at para. 16).

5. The law does not require a meeting of the minds regarding the intention to separate; a physical separation, coupled with the intention of one party to live separate and apart, is sufficient (Strobele v. Strobele, 2005 CarswellOnt 9201 (S.C.J.), at para. 30; S.(H.S.) v. D.(S.H.), 2016 CarswellBC 1975 (S.C.), at para. 40); Nearing v. Sauer, 2015 BCSC 58 (S.C.), at para. 54). As McDermot J. stated in O’Brien v. O’Brien, 2013 ONSC 5750 (S.C.J.), at para. 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.

6. A clear statement or unequivocal act by one of the parties of their desire to terminate the relationship will be very relevant to the determination of whether parties are living separate and apart (O’Brien, at para. 52; S.A.H. v. I.B.L., 2018 BCSC 544 (S.C.), at para. 17). However, the intention to separate need not be unambiguously relayed to the other spouse by way of a verbal expression of settled intention. In the context of both common law relationships and married couples, the courts have held that a relationship has come to an end when either party regards it as being at an end, and that party by their conduct has demonstrated in a convincing manner that their state of mind on this issue is a settled one (Sanderson v. Russell (1979), 1979 CanLII 2048 (ON CA), 24 O.R. (2d) 429 (C.A.), at para. 432; Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65 (S.C.C.), at para. 42; S.(H.S.), v. D.(S.H.), at para. 43; Naegels v. Robillard, 2019 ONSC 2662 (S.C.J.), at para. 37).

7. In assessing whether there is an intention on the part of one or both parties to live separate and apart from the other, the court must strive to determine their true intent and not simply their stated intent at the time of hearing (Oswell, at para. 18; Greaves, at para. 34; R.(T.) v. K.(A.), 2015 ONSC 6272 (S.C.J), at para. 47).

8. A party’s intention to live separate and apart will not necessarily be broken by brief references by that party to the possibility of reconciliation where no serious steps were taken to move towards such a goal (Nearing, at para. 59).

9. The degree to which the parties were intimate with each other is a relevant consideration (Oswell, at para. 15; Rosseter, at para. 38; Anthony v. Anthony, 2019 ONSC 650 (S.C.J.), at para. 42). However, the absence of sexual relations is not a conclusive indicator that the parties are living separate and apart (Newman v. Newman, 1970 CarswellOnt 123 (C.A.); Cooper v. Cooper (1972), 1972 CanLII 1901 (ON SC), 10 R.F.L. 184 (Ont. H.C.); Oswell, at para. 15). Similarly, the fact that the parties have engaged in sexual relations is not determinative of whether they remain separate and apart or have reconciled. Parties who are generally living separate lives in separate homes may be found to be living separate and apart despite occasional incidents of sexual intimacy and discussions of reconciliation (Greaves, at para. 36; S.(K.L.), at para. 23; Wells. v. King, 2015 NSSC 232 (S.C.), at para. 23). However, the presence of sexual relations while the parties are still physically living with each other will be a strong indicator that they continue to cohabit in a conjugal relationship (Tokaji v. Tokaji, 2016 ONSC 7993 (S.C.J.), at para. 26).

10. Whether the parties have been involved romantically with other people (Rosseter, at para. 39). However, the fact that they have had relationships with other people is not determinative either, particularly if the other party was unaware of the other relations (Neufeld, at para. 75).

11. Whether the parties have continued to discuss family issues and problems and communicate about daily issues (Greaves, at para. 34; Cooper, at para. 12; Oswell, at para. 16).

12. Have there have been any changes in expectations regarding their accountability to each other for daily activities? (Oswell, at para. 37).

13. The extent and nature of their contact with each other, including whether they have continued to participate in joint social activities (Cooper at para. 15; Oswell, at para. 16; Greaves, at para. 34; Torosantucci; Rosseter, at para. 26; Anthony, at para. 42). In assessing any contacts, the court should consider whether the events were evidence of an ongoing relationship or reconciliation or simply “rare moments of friendliness or civility” (Torosantucci; Daley v. Gowan, 2015 ONSC 6741 (S.C.J.), at para. 66).

14. Whether the parties spent vacations together (Oswell, at para. 26; Rosseter, at para. 34; Henderson v. Casson, 2014 ONSC 720 (S.C.J); Neufeld, at para. 75; Anthony, at para. 42 ).

15. Attendances by both parties with their children for family events, activities and even family vacations is relevant but not determinative, as these may simply reflect the parties’ efforts to co-parent in the best interests of the children post-separation (Volcko v. Volcko, 2015 NSCA 11, at para. 10-11; Neufeld, at para. 75(j)).

16. Have the parties continued to share and participate in each other’s daily routines as in the past, such as eating meals together and sharing household chores? (Cooper, at paras. 13 and 14; Oswell, at paras. 16 and 17; Rosseter, at para. 20; Henderson; Anthony, at para. 42).

17. Whether they have celebrated special occasions together (Oswell, at para. 37; Rosseter, at para. 29)

18. Whether they have purchased gifts or exchanged other tokens of affection with each other (Oswell, at para. 29; Rosseter, at para. 29; Neufeld, at para. 75).

19. Whether they have supported each other with respect to extended family obligations, through difficult times and with each other’s personal issues (Rosseter, at para. 31; Henderson v. Casson, 2014 ONSC 720 (S.C.J)).

20. How the parties referred to each other and held out their relationship to third parties (Anthony, at para. 42; R.(T.) v. K.(A.), at para. 46).

21. Documentary evidence respecting their relationship status is also relevant. For example, the manner in which the parties described their status in important documents, including Income Tax Returns, and whether they have claimed any benefits that are conditional on their relationship status are important considerations (Czepa v. Czepa (1988), 1988 CanLII 8647 (ON SC), 16 R.F.L. (3d) 191 (Ont. H.C.J.), at para. 13; Oswell, at para. 18; Greaves, at para. 34; Joanis v. Bourque, 2016 ONSC 6505 (S.C.J.), at para 25; Rosseter, at para. 47; Henderson, at para. 35; Tokaji, at para. 25). Once again, however, these considerations are not determinative, and the court should consider any explanations which either party may proffer before determining the weight, if any, to accord to them (Morin v. Morin, 2011 ONSC 1727 (S.C.J.), at para. 27; Anthony, at para. 42).

22. If the parties have retained a counsellor or mediator, the purpose for which the mediator was consulted may also be of assistance in determining whether the parties have separated (Oswell, at para. 28).

23. Whether there have been any changes in the way the parties manage their financial affairs, including whether they have taken steps to separate their financial dealings (Newton v. Newton, 1995 CanLII 17875 (ON SC), 1995 CarswellOnt 84 (S.C.J.); Rosseter, at para. 41; Tokaji, at para. 24; Anthony, at para. 42).

24. Have the parties continued to share the use of assets? (Rosseter, at para. 43).

25. The parties’ behaviour towards each other in the presence of third parties (Rosseter, at para. 44).

26. Whether the parties have taken legal steps to legally terminate their relationship and resolve issues relating to their separation (Oswell, at para. 35; Tesfatsion v. Berhane, 2013 CarswellOnt 213 (S.C.J.), at para. 53; Rosseter, at para. 49). However, this factor is not determinative and may be given little weight if no further steps were taken and other factors point to a continuation of their involvement with each other as a couple (Rosseter, at paras. 49-51).

C. The Meaning and Indicia of “Cohabitation” under the [Divorce Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/latest/rsc-1985-c-3-2nd-supp.html)

[27] The term “cohabitation” is not defined in the Divorce Act. However, the caselaw relating to the meaning of this word in the Divorce Act has clarified that it connotes more than simply two people living in one residence. Rather, it refers to residing together in a relationship involving the mutual assumption of those rights, duties and obligations which are usually manifested by married people, but not necessarily dependent on sexual relations (Wheatley v. Wheatley, [1950] 1 K.B. 39, at para. 43; H. v. H., 1976 CarswellOnt 234 (H.C.J.), at para. 17; Agoston v. Agoston, 1985 CarswellOnt 1951 (H.C.J.), at para 5). In Feng v. Phillips, 2005 CarswellOnt 8416 (S.C.J.), Whalen J. described cohabitation for the purposes of the spousal support analysis under the Divorce Act as involving living together in a “conjugal relationship.” He adopted the conclusions of Yamauchi J. in Kiernan v. Stach Estate, 2009 ABQB 150 (Q.B.), at para. 45 that the notion of a “conjugal relationship” refers to more than simply a sexual or physical relationship; rather, it speaks more to “dependence, permanence and commitment similar to that of a marriage or a common-law relationship.” The existence of sexual relations is one factor to consider in determining if a conjugal relationship exists, but it is not necessary or determinative (Feng, at para. 54; Stach Estate, at para. 45).

[28] The type of cohabitation that is relevant to the determination of any separation dates for spousal support and divorce entitlement purposes is therefore “cohabitation in a conjugal relationship.” As with the meaning of “living separate and apart,” the analysis of whether parties are cohabiting in a conjugal relationship must be astute to the unique historical and current realities and dynamics of their situation. No one factor is decisive, and a holistic and contextual approach is necessary. The general principles and relevant factors for determining whether parties are cohabiting in a conjugal relationship are similar to those outlined above regarding the meaning of “living separate and apart.” Much of the relevant caselaw relates to the meaning of “cohabit” for the purposes of spousal support for unmarried couples under the Family Law Act and its predecessor, the Family Law Reform Act, 1978 (Ont.), c. 2. In that context, the term “cohabit” means “to live together in a conjugal relationship, whether within or outside of marriage” (s. 1(1) of the Family Law Act).

[29] In M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3(S.C.C.), the Supreme Court of Canada referred to the decision in Molodowich as setting out the generally accepted considerations for determining whether a conjugal relationship exists. The non-exhaustive list of factors which the court set out in Molodowich is as follows:

1. Shelter:

a. Did the parties live under the same roof?

b. What were the sleeping arrangements?

c. Did anyone else occupy or share the available accommodation?

2. Sexual and Personal Behaviour:

a. Did the parties have sexual relations? If not, why not?

b. Did they maintain an attitude of fidelity to each other?

c. What were their feelings toward each other?

d. Did they communicate on a personal level?

e. Did they eat their meals together?

f. What, if anything, did they do to assist each other with problems or during illness?

g. Did they buy gifts for each other on special occasions?

3. Services:

What was the conduct and habit of the parties in relation to:

a. Preparation of meals,

b. Washing and mending clothes,

c. Shopping,

d. Household maintenance, and

e. Any other domestic services?

4. Social:

a. Did they participate together or separately in neighbourhood and community activities?

b. What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

5. Societal:

What was the attitude and conduct of the community towards each of them and as a couple?

6. Support (Economic):

a. What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

b. What were the arrangements concerning the acquisition and ownership of property?

c. Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

7. Children:

What was the attitude and conduct of the parties concerning children?

[30] This list reveals that essentially all of the factors relevant to whether spouses are “living separate and apart,” as outlined above in these Reasons, are also relevant to ascertaining whether they are cohabiting in a conjugal relationship (see also Stephen v. Stawecki (2006), 2006 CanLII 20225 (ON CA), 32 R.F.L. (6^th) 282 (Ont. C.A.)). None of the factors are determinative. In Climans v. Latner, 2019 ONSC 1311 (S.C.J.), Shore J. set out a detailed summary of recent caselaw addressing the issue of whether parties were cohabiting in a conjugal relationship. A review of that caselaw indicates that the list of factors set out in Molodowich continues to provide the framework for the analysis of this issue (see for example Nowell v. Town Estate (1994), 1994 CanLII 7285 (ON SC), 19 O.R. (3d) 303 (Gen. Div.); appeal allowed on other grounds (1997), 3 O.R. (3dd) 415 (C.A.); Quesnel v. Erickson, 2012 ONSC 4335 (S.C.J.); Karamanoglu v. Nygaard, 2015 CarswellBC 633 (S.C.); Derakhshan v. Narula, 2018 ONSC 537 (S.C.J.)).

[31] For the purposes of this case, the fact that the parties had two separate residences for most of the time since their arrival in Canada raises special challenges in determining when their cohabitation ceased and they began to live separate and apart. Particular attention to the caselaw respecting the implications of separate residences for the purposes of determining if parties “cohabited” is therefore required. Shore J. reviewed this issue in detail in the recent case of Climans. The general principles regarding this issue can be summarized as follows:

1. The fact that parties maintain separate residences does not preclude a finding that they cohabited in a conjugal relationship. The Supreme Court of Canada held in Hodge, at para. 42 that "cohabitation" is not synonymous with co-residence. It concluded that two people can cohabit even though they do not live under the same roof and, conversely, they may not be cohabiting in the relevant sense even if they are living under the same roof (at para. 42).

2. In deciding whether parties who maintain two residences are cohabiting or separated, the court must look at all of the circumstances of the parties’ relationship, including the reasons for maintaining more than one residence, such as facilitating access with their children (Thauvette v. Malyon (1996), 1996 CanLII 8090 (ON SC), 23 R.F.L. (4th) 217 (Ont. Gen. Div.), at 222; Campbell v. Szoke, 2003 CarswellOnt 3362 (S.C.J.), at para. 52; Stephen, at para. 4; Roach v. Dutra, 2010 BCCA 264 (C.A.), at para. 20; Quesnel, at para. 9). As the Ontario Court of Appeal held in Stephen, at para. 4, the jurisprudence has interpreted "live together in a conjugal relationship" as a unitary concept, and the specific arrangements made for shelter are properly treated as only one of several relevant factors in assessing whether or not the parties are cohabiting. The court stressed in that case that a “mechanical bright line test” cannot be used for determining whether parties cohabited in a conjugal relationship, having regard for the variety of relationships and living arrangements that have evolved and become socially acceptable in modern society. The court also concluded that a stringent test for determining whether cohabitation in a conjugal relationship has been established based solely on parties residing under one roof would be inconsistent with the flexible approach adopted by the Supreme Court of Canada in M v. H.

3. Parties who live together only on weekends or who only stay part of the week at each other’s homes can be found to be cohabiting for Family Law purposes if there are other indicia of a conjugal relationship (Hazlewood v. Kent, [2000] O.J. No. 5263 (Ont. Fam. Ct.), at para. 8; Campbell, at paras. 52 and 56; Thauvette, at para. 32).

4. With respect to the evidence as to whether there was cohabitation in a conjugal relationship, objective evidence from the relevant time frame is “more probative of the nature of the parties' relationship than the viva voce evidence of the parties in the midst of acrimonious and bitter proceedings" (Macmillan-Dekker v. Dekker, 2000 CarswellOnt 2808 (S.C.J.), at para. 22).

II. LEGAL PRINCIPLES RESPECTING THE DETERMINATION OF THE VALUATION DATE FOR EQUALIZATION OF NET FAMILY PROPERTIES UNDER THE FAMILY LAW ACT

[32] With respect to the equalization claim, although the order of Madsen J. directed a trial of the “separation date,” counsel clarified at the outset of trial that they were also seeking a determination of the “valuation date” for the purpose of equalizing the parties’ net family properties. The starting point for the determination of the valuation date is section 5(1) of the Family Law Act, which provides as follows:

Equalization of net family properties

Divorce, etc.

5 (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

[33] Section 4(1) of the Family Law Act defines “net family property” as follows:

“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(a) the spouse’s debts and other liabilities, and

(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.

[34] By virtue of this definition, the “valuation date” is a key component to determining each party’s net family property. Section 4(1) defines “valuation date” as follows:

“valuation date” means the earliest of the following dates:

1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

2. The date a divorce is granted.

3. The date the marriage is declared a nullity.

4. The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.

5. The date before the date on which one of the spouses dies leaving the other spouse surviving.

[35] The applicable date in this case is that set out in subsection 1 of the definition, namely when the parties separated and there was no reasonable prospect that they would resume cohabitation.

[36] The decision respecting the valuation date for the purposes of equalization of net family properties can have significant financial consequences for the parties. Having regard for this fact, the court must be vigilant in fixing the valuation date and must guard against any party who may be attempting to manipulate the facts to advance their own financial interests (Newton, at para. 49; Tesfatsion, at para. 41).

[37] The identification of the valuation date involves the determination of two issues. First, the court must decide when the parties separated. Second, it must determine the point at which there was no reasonable prospect that the parties would resume “cohabitation.” As previously indicated, at the first stage of the analysis, the principles and factors relevant to deciding whether parties are separate and apart or cohabiting in a conjugal relationship for the purposes of divorce entitlement and spousal support apply likewise to the inquiry as to when the parties separated for valuation date purposes (see also Rosseter, at para. 9; Tokaji, at para. 3). With respect to the second stage, as indicated above, s. 1(1) of the Family Law Act provides that “cohabit” means to live together in a conjugal relationship, whether within or outside marriage. Accordingly, at the second phase of the analysis, the task is to determine the point at which there was no reasonable prospect that the parties would resume living together in a conjugal relationship. The notion of “reasonableness” is at the heart of this analysis. Half-hearted suggestions or discussions about possible reconciliation will not necessarily move the valuation date forward in the absence of sincere action by the parties to put their relationship back on track (Strobele, at para. 32). As Beckett J. stated in Torosantucci, a reasonable prospect of resumption of cohabitation “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.” He added that in order to find that there is a reasonable prospect of resumed cohabitation, “there must be some indication or step taken by both of them in that direction” (see also Rosseter, at paras. 57-58; Tesfatsion, at para. 56). A sincere desire on the part of one party to resume cohabitation and efforts by that party to advance this objective will not generate a reasonable prospect of resumed cohabitation if the other party has no mutual interest in exploring this possibility. In the words of Corbett J. in Strobele, at para. 32, “groundless hopes of reconciliation should not extend the valuation date where one spouse has been clear in his or her intentions to end the relationship” (see also O’Brien, at para. 50).

[38] The outcome of the second stage of the analysis may in some cases move the valuation date to a point later in time than the separation date for the purposes of divorce entitlement and spousal support. As Whitten J. commented in Taylor v. Taylor, 1999 CarswellOnt 4653 (S.C.J.), at para. 9, it is possible that parties could be truly separated, but nonetheless both entertain a reasonable prospect that they may resume cohabitation at some ill-defined time in the future. Whitten J. noted that in such circumstances, “[t]o 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 the pressures of cohabitation” (see also Tesfatsion, at para. 45).

[39] In Czepa, at para 15, the court described the quest for the valuation date in general terms as being “tied to that date when the marriage is irretrievably broken down and the resumption of cohabitation is not reasonably in the cards” (see also Shah v. Shah, 2018 ONSC 5784 (S.C.J.), at para. 77). Determining the point at which there was no reasonable prospect of resumed cohabitation requires the court to carefully consider and weigh all of the relevant factors objectively. In this regard, Scott J. commented as follows in Hogarth v. Hogarth, 2018 ONSC 3580 (S.C.J.), at para. 9:

The court must look at the specific facts related to each situation, as the determination of the valuation date is fact driven. The court must draw conclusions concerning the intentions of the parties with respect to their relationship. Intentions by necessity will be decided by a review of both the statements and actions of the parties and an analysis of the consistency of one with the other.

[40] The various factors outlined above relating to cohabitation and the separation date are relevant to whether there was a reasonable prospect that the parties would resume cohabitation, but they are not determinative (Rosseter, at para. 53). However, the evidence respecting the manner in which the parties managed their financial affairs post-separation may be particularly relevant to the determination of the valuation date. When one or both of the spouses make plans for their assets and general finances as separated persons, the courts often consider this to be strongly indicative that there is no real prospect of resumed cohabitation (Oswell, at para. 19).

PART V: CREDIBILITY AND RELIABILITY ASSESSMENT

[41] The determination of the separation and valuation dates in Family Law turns largely on findings of fact. While there are often disputes regarding these dates, this case was truly remarkable for the extent of the discrepancies in the parties’ evidence respecting virtually every important matter relevant to fixing the separation/valuation date. Accordingly, my assessment of the parties’ overall credibility and reliability was pivotal to the outcome of this case. I address the credibility and reliability of the parties in more detail below in my review of the evidence and analysis of the issues. At this point, I outline my overall impressions and conclusions.

[42] The case-law has highlighted that the assessment of credibility and reliability is not an exact science; rather, it is a challenging and delicate task, the outcome of which is often difficult to explain in precise terms. As the Supreme Court of Canada stated in R. c. Gagnon, 2006 SCC 17 (S.C.C.), at para. 20, it is not always possible “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (see also R. v. M.(R.E.), 2008 SCC 51 (S.C.C.), at para. 49; Hurst v. Gill, 2011 NSCA 100, at paras 18-19). The complexity of the task is highlighted by the fact that the judge is not required by law to believe or disbelieve a witness's testimony in its entirety. On the contrary, they may accept none, part or all of a witness's evidence, and may also attach different weight to different parts of a witness's evidence (see R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (Ont. C.A.) at paragraphs 51-56; McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22). Despite the challenges inherent in the task, the case-law has articulated numerous factors which the courts may consider in weighing and assessing the credibility and reliability of witnesses. Drawing from the decisions in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133 (B.C. C.A.), at para 9, R. v. Norman, (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), R. v. Mah, 2002 NSCA 99 (C.A.), at paragraphs 70-75, R. v. Jeng, 2004 BCCA 464 (B.C. C.A.), Bradshaw v. Stenner, 2010 BCSC 1398 (B.C. S.C.) at para 186, aff'd 2012 BCCA 296 (B.C. C.A.) and B.G.M.S. v. J.E.B., 2018 CarswellBC 2538, at paras. 34-40 (S.C.), these considerations include the following:

a) Were there inconsistencies and weaknesses in the witness' evidence, including internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the documentary evidence, or between their evidence and that of other witnesses?

b) Did the witness have an interest in the outcome or were they personally connected to either party?

c) Did the witness have a motive to deceive?

d) Did the witness have the ability to observe the factual matters about which they testified?

e) Did they have a sufficient power of recollection to provide the court with an accurate account?

f) Is the testimony in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?” (Faryna, at para. 10)

g) Was there an internal consistency and logical flow to the evidence?

h) Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?

i) Where appropriate, was the witness capable of making an admission against interest, or were they self-serving?

j) Is there independent evidence that confirms or contradicts the witness' testimony?

k) Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. As the Ontario Court of Appeal emphasized in R. v. Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mah at paragraphs 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness' poor presentation as deceptive (R. v. Jeng, at paras. 53-54).

[43] I have carefully considered these factors in relation to the evidence of the parties. Dealing first with the Respondent, there were some aspects of his evidence which I found troubling. For instance, as discussed in further detail below, the Applicant adduced as evidence several photographs which showed the parties together on various occasions from August 2014 onward. With respect to some of the photographs, the Respondent presented as overly resistant to acknowledging that he was with the Applicant on the occasions in question. Despite these concerns, my overall impression of the Respondent was that he was extremely credible and reliable. His testimony was generally consistent with the information set out in his pleadings and other important documentation that was adduced at trial. As I discuss below, on the rare occasion when there were inconsistencies in his testimony and documentary evidence, he was able to provide reasonable and credible explanations and there was other documentary evidence that supported his evidence. His testimony relating to important events included a great amount of detail, and the particulars remained consistent at various points both during his examination in chief and when he was cross examined. His evidence regarding the domestic incident between the parties on March 9, 2014 was one such example. In addition, at various points in his evidence, he readily acknowledged facts that were not in his interest. Finally, the Respondent called several witnesses to support his version of the parties’ separation date and valuation date. As I discuss in further detail below, I found their evidence more compelling than that of the witnesses who the Applicant called to support her version of the relevant date.

[44] With respect to the Applicant, I had very serious concerns respecting her overall credibility and reliability. Her testimony was inconsistent in many respects with information which she set out in her own pleadings and in important government and other documents which she completed from March 2014 onward. Her explanations for these inconsistencies were not compelling. She asserted that she did not tell the truth about her relationship status in her Income Tax Returns and her Canadian citizenship application. She was evasive about how long she had actually known the guarantor for her passport application. Where her testimony was inconsistent with information in documents, she blamed others for either completing the documents incorrectly or pressuring her to be dishonest in completing them. She did not accept responsibility for any such discrepancies. At various points in cross examination, she presented as evasive or unresponsive when questioned on points that did not support her case. In addition, as I will discuss in further detail below, I had concerns as to whether some of the photographs which she filed as evidence were accurately dated and described. Furthermore, there were aspects of her evidence for which she could have obtained corroborating documentary evidence but failed to do so. Finally, with respect to several important events, her testimony lacked the detail and general sense of credibility that I found in the Respondent’s evidence relating to the same events. For instance, the Respondent’s version of the events of March 7, 2014 was much more detailed, free-flowing and generally credible than the Applicant’s explanation. In addition, the Respondent’s explanations respecting the parties’ financial dealings with each other after March 2014 was much more detailed and credible in light of all of the evidence than the Applicant’s. For all of these reasons, where there were material discrepancies in the parties’ evidence, I have generally preferred the Respondent’s evidence over that of the Applicant.

PART VI: ANALYSIS

I. KEY FINDINGS OF FACT RESPECTING THE SEPARATION AND VALUATION DATES

A. The Domestic Incident on March 7, 2014 and the Assault Charge

[45] I turn now to the reasons for my decision that March 7, 2014 was both the separation date and valuation date in this case. As I have already discussed, the parties had a domestic incident at their apartment on Main Street West in Hamilton on this day, as a result of which the Respondent was charged with assault. The Respondent alleges that this was the date on which the parties began to live separate and apart, with no reasonable prospect that they would resume cohabitation. There is no dispute that the parties began to live apart from each other immediately following this incident. The Respondent was precluded from having any contact with the Applicant as a result of the terms of his release, and I find that he abided by those terms.

[46] The evidence relating to the domestic incident that occurred on March 7, 2014 and its aftermath is relevant to the Respondent’s intention to separate and the overall credibility of the parties. As I have indicated earlier in these Reasons, the Respondent testified that at the end of this incident, he clearly told the Applicant that she was divorced, and that this was the manner in which a divorce is effected according to the Islamic faith. Counsel for the Applicant suggested that this evidence should be given little or no weight, since there was no expert evidence adduced as to whether this type of declaration in such a heated context would have the effect of terminating the marriage according to Islamic law. I conclude that regardless of the effect of such an utterance in terms of effecting an Islamic divorce, such a statement would nonetheless reflect an intention at least at that point to end the relationship and to be separated. I accept the Respondent’s evidence that he told the Applicant that she was divorced on March 7, 2014, and that this statement evidenced his true intention to be separated. He gave credible evidence that he had in fact talked to the Applicant about the problems in their relationship and his thoughts about separating several weeks prior to March 7, 2014. He provided an extremely detailed narrative of the dispute on March 7, 2014 and precisely when he told the Applicant that she was divorced. He also described in great detail how the Applicant responded, by shouting and throwing items in the apartment. By way of contrast, there were serious problems with the Applicant’s evidence as to whether the Respondent ever told her that she was divorced. Specifically:

a) In her application, the Applicant clearly stated that the Respondent was livid with her for reporting the domestic incident to the police, and therefore advised her that he divorced her religiously.

b) By contrast, at one point in her testimony at trial, she insisted that the Respondent never clearly told her directly that he had divorced her religiously. Rather, she alleged that he attended at her apartment in Hamilton after the criminal charge was dropped on July 17, 2014 and advised her at that time that he had divorced her by telling someone else that he was doing so. The Applicant testified that she responded by stating that he had to tell her directly for the divorce to be effective. According to the Applicant, the Respondent returned to London at that point and she then told him that she would be proceeding with the separation. This evidence clearly indicates that the Applicant also had an intention to live separate and apart as of that time.

c) However, later in her testimony, the Applicant suggested that the Respondent had actually verbally divorced her on July 17, 2014 when he came to her home after the charge was withdrawn. She made this comment after confirming in cross examination that she had described herself as separated in her Ontario Student Assistance Program (“OSAP”) application in 2014, and by way of explanation of her reason for doing so.

[47] The Applicant’s evidence as to whether or not the Respondent properly effected an Islamic divorce was also very problematic. The parties had divorced each other previously, and the suggestion that there was any confusion on the part of the Respondent as to what was required to carry out a religious divorce was simply not believable.

[48] The evidence relating to the domestic incident that occurred on March 7, 2014 is also important in terms of assessing the parties’ overall credibility. The Respondent was by far the more credible party in describing the events of that day. He provided many more details of what occurred, and the free-flowing manner in which he described the events lent credibility to his description. He was consistent in describing very specific details in his Answer and Claim, his examination in chief and on cross examination. His explanation of the reasons for the escalation in the situation was believable. Furthermore, he acknowledged being partly to blame for the escalation in the situation, and admitted that he had pushed the Applicant. However, he also described in detail how the Applicant was aggressive towards him during this incident, including details about her pulling on a bag that he was holding and causing significant marks on his neck. By comparison, although the Applicant provided many details of the events leading up to the Respondent’s arrival at the apartment in Hamilton, she did not provide the same level of specificity about the reasons for the escalation in the conflict, the aggression between the parties or the immediate aftermath of the aggression. She did not acknowledge any responsibility for the escalation in the conflict. In short, her evidence respecting the details of the actual dispute presented as truncated and contrived.

B. The Applicant’s Letter to the Crown and the Withdrawal of the Assault Charge

[49] The circumstances surrounding the Crown’s withdrawal of the assault charge against the Respondent are also relevant to the issues in dispute. The Applicant adduced as evidence a letter dated April 2, 2014 which she wrote to the Crown Attorney. In that letter, the Applicant indicated that she wished to reconcile with the Respondent and requested that the Crown withdraw the charge. She wrote that a marital reconciliation and resolving the criminal matter as soon as possible would be the best outcomes for the family. Furthermore, she stated that the Respondent was the main financial provider for the family, and described at great length what a loving father and husband he had been over the years. I note that the many positive comments which the Applicant wrote about the Respondent directly contradicted the bald allegation which she made in her application that the Respondent had a history of being physically, emotionally and verbally abusive towards her, and her assertion in her Form 35.1 Affidavit that he had a similar history of violence and abuse towards Rand and Abdullah.

[50] Counsel for the Applicant suggested both in cross examination of the Respondent and in his Closing Submissions that the Applicant’s letter to the Crown evidenced an intention and plan on the part of the parties to reconcile and put the alleged assault behind them. However, the Applicant’s own evidence respecting this letter suggested otherwise and cast a further cloud on her overall credibility. In her application, she stated that she wrote the letter due to significant pressure from the Respondent to do so, despite the existence of the no-contact terms in effect in the criminal proceeding. However, in her examination in chief, she stated that she wrote the letter after she began to receive numerous telephone calls from the parties’ friends, who pressured her about having reported the incident and how the charge would impact the Respondent and the family generally. The Respondent was adamant in his testimony that he never pressured the Applicant to write this letter, and that he did not breach the no-contact terms of his release. Furthermore, the Applicant testified that the comments which she made in the letter did not in fact reflect her true sentiments at the time. In fact, she insisted that the statements “were not really accurate,” and that she had to say things that did not really exist to get the Respondent off the criminal charges. These comments contradicted the suggestion that the letter reflected a desire on her part to reconcile with the Respondent.

[51] The theory that the Applicant’s letter to the Crown Attorney dated April 2, 2014 reflected an intention to reconcile is also inconsistent with the contents of a letter which the Respondent received from the Applicant’s counsel Mr. Sherman a few weeks later on July 8, 2014. That letter confirmed that the Applicant had consulted with and retained Mr. Sherman in relation to the parties’ recent separation. Mr. Sherman requested in this letter that the Respondent execute travel consents respecting the children. The notion that there were thoughts of reconciliation around this period of time is also completely at odds with the Applicant’s own testimony that she advised the Respondent on July 17, 2014, immediately after the criminal charge was withdrawn, that she would be moving forward with the separation. Finally, the evidence indicates that in July 2014, the Applicant noted on the documentation relating to her OSAP loan that she was separated.

C. The Alleged Islamic Remarriage

[52] Notwithstanding the lack of clarity in the Applicant’s evidence about the Islamic divorce, she insisted that the parties underwent an Islamic remarriage sometime in late July or early August 2014. She testified that around that time, the Respondent advised her that he did not wish to proceed with the separation. She alleged that the Respondent consulted with his brother, who has a Ph.D. in Islamic Studies, and that she and the Respondent then drove to a mosque on the Hamilton Mountain to try to find an Imam so that they could remarry. She described staying in the car while the Respondent went into the mosque to locate and speak with the Imam. According to the Applicant, the Respondent returned to the car and explained that the Imam was not there. However, he then supposedly called and spoke to the Imam, following which he explained to the Applicant that they could just say to everyone that they were married again, and “that is it.” The Respondent has consistently denied that these events occurred or that the parties ever took steps to undergo an Islamic remarriage.

[53] The Applicant’s evidence respecting this alleged Islamic remarriage was disjointed and not credible in the least. For one thing, it was markedly different from her description of these alleged events in her pleading. In her application, she stated that shortly after the religious divorce, the date of which was not specified in the application, the parties attended at a Hamilton mosque and were remarried, “with their friends and immediate families as witnesses.” The Applicant acknowledged at trial that the parties never entered the mosque and that there were no extended family members or friends present. While minor discrepancies could potentially be attributed to drafting deficiencies, the stark contrast between the two descriptions of these alleged events points to serious credibility problems. Furthermore, the Applicant acknowledged that when the parties were re-married previously in May 2007, it was necessary to have two men present, as well as the Applicant’s father or a representative of her father, in order to formalize the remarriage. It was only after she was cross examined on this issue that she suggested that the parties had called their families during the alleged remarriage in 2014. Having regard for the parties’ experience with Islamic divorce and remarriage in earlier years, the Applicant’s evidence that she was satisfied with the legitimacy of the alleged 2014 remarriage is simply not believable. I accept the Respondent’s evidence that the parties did not attend at a Hamilton mosque in 2014 or at any other later date to undergo a religious remarriage.

D. The August 17, 2014 Wedding

[54] In support of her assertion that the parties reconciled in late July or early August 2014, the Applicant alleged that they went together to the wedding of mutual friends, Ahmed Al-Galaini and Shad Emad, on August 17, 2014. According to the Applicant, the parties arranged for her mother to watch the children overnight so that they could attend the wedding and then spend the night together in a hotel. She stated that they lied to her mother about the wedding continuing late into the night so that she would care for the children overnight. In support of this allegation, she tendered as evidence two photographs of the parties together, which she asserted were taken on August 17, 2014 in connection with this wedding. She alleged that the first photograph of her and the Respondent was taken at her home in Hamilton before the wedding, and that her mother took the picture, and that the second photograph of the parties was taken at the wedding reception.

[55] The Respondent testified that the parties attended a wedding together as a couple in 2012 at a venue called Jerusalem Hall. He also acknowledged that they both attended the wedding of Ahmed Al-Galaini and Shad Emad in August 2014, which he testified took place at a venue called Shahrayar Hall, but insisted that they attended that wedding separately. He was adamant that he did not attend the Applicant’s home on that occasion, and that he would not have had any contact with the Applicant’s mother due to the high level of conflict between them at that point in time. He testified that he sat at the Applicant’s table for part of the time at the wedding, but he specifically recalled driving to the wedding separately and leaving in separate vehicles.

[56] I found the Respondent’s version of events relating to the August 2014 wedding more credible than that of the Applicant. The Applicant’s evidence respecting the parties’ attendances at the two weddings which the Respondent referred to was uncertain and unclear as compared to that of the Respondent. She stated in her examination in chief that the wedding which the parties attended when they spent the night in the hotel occurred at Shahrayar Hall, but on cross examination she clarified that it had actually occurred at Jerusalem Hall. The Respondent testified that the 2012 wedding had occurred at Jerusalem Hall. In addition, the Applicant was unclear of the city where the wedding occurred when the parties spent the night together in a hotel. She did not provide the name of the hotel where the parties allegedly spent the night, nor did she provide any documentary evidence to corroborate this alleged stay. Overall, the Respondent appeared to have a much sounder and detailed recollection of the two weddings that the parties attended, and the nature of the parties’ interactions at both.

[57] With respect to the two photographs that the Applicant adduced as evidence to support her allegation that the parties attended the August 17, 2014 wedding together, they both had the date of August 17, 2014 noted at the top. In addition, they had another date of January 4, 2018. These were two of several photographs which the Applicant adduced as evidence, and which the Respondent consented to admitting as Exhibit 3 at trial. The Applicant testified that the various photographs included in Exhibit 3 were taken using either her cell phone or Rand’s cell phone or tablet. She explained that many of the photographs, including those dated August 17, 2014, had two different dates on them because they were screenshots taken with a cell phone and which she then forwarded to her laptop to organize and provide to Mr. Sherman. She testified that the two dates shown were the dates when the photographs were actually taken and the dates when she sent them to her laptop. Although the Respondent consented to the entire package of photographs being admitted as an exhibit, he and his counsel proceeded to challenge the genuineness of several of the photographs and the reliability of the dates which were noted on many of them, and submitted that these concerns should go to the weight if any that the court should place on the photographs. The Respondent raised these types of concerns in connection with the photographs which the Applicant alleged related to the August 14, 2017 wedding. Accordingly, it is necessary to comment at this point on the admissibility of electronic photographs and how the court should address the types of concerns which the Respondent and his counsel raised at trial.

[58] Photographs fall within the broad category of “real evidence,” which refers to tangible items presented to the court as evidence (R. v. Nikolovski (1996), 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C.)). Real evidence encompasses photographs which are electronically-generated, including screenshots from cell phones (R. v. Nardi, 2012 CarswellBC 2801 (P.C.), at para. 21). In R. v. McCulloch, [1992] B.C.J. No. 2282 (P.C.), at para. 18, the court stated as follows with respect to photographs and recordings:

Where evidence is automatically recorded by any means, other than by human labour, and the evidence so recorded can be reproduced in any form, intelligible to the human mind, the reproduction is admissible as real evidence. The recording may be mechanical, chemical, electronic, photographic, or auditory, to name a few examples, and the reproduction may be by computer printout, audiovisual playback, photographs, or other means. The weight to be attached to such evidence will depend on the accuracy and integrity of the process employed.

[59] In order for real evidence to be admitted, it must meet the threshold requirements of authenticity and integrity. With respect specifically to photographs, the case-law has established that their admissibility and the weight, if any, which they should be given depend on the following:

a) Their verification (authentication) on oath by a person capable of doing so;

b) Their accuracy in truly representing the facts which they are alleged to represent; and

c) Their fairness and absence of any intention to mislead.

(R. v. Creemer and Cormier, 1967 CanLII 711 (NS CA), [1968] 1 C.C.C. 14 (N.S.C.A.), at p. 22; R v. Murphy, 2011 NSCA 54 (C.A.); R. v. Andalib-Goortani, 2014 ONSC 4690 (S.C.J.))

[60] The process of authentication involves showing that the item is in fact what the party claims it to be. At common law, the standard for establishing the authenticity of real evidence at the admissibility stage is low. Authentication is simply a threshold test for admitting the evidence, and it is met upon the judge being satisfied that there is some evidence capable of supporting a finding that the item in question is what the party seeking to adduce it claims it to be (R. v. Donald, 1958 CanLII 470 (NB CA), 1958 CarswellNB 4, 121 C.C.C. 304 (C.A.), at para. 7). The burden of establishing authenticity lies on the party seeking to make use of the evidence. Authentication can be established even where there is a dispute about whether the item in question is actually what it purports to be. The ultimate authenticity of the evidence is a matter for the trier of fact to determine based on all of the evidence, including credibility considerations (R. v. Donald, at para. 7). With respect to photographs, the person verifying the authenticity of the photographs need not be the photographer. A person who has witnessed the scene or events may confirm that the photograph is a fair and accurate rendition of what the party seeking to adduce it alleges it represents.

[61] Once the authentication test is met, the admission of real evidence, including photographs, also involves an assessment of the integrity of the proposed evidence. With respect to documents, photographs and recordings, the “best evidence rule” evolved at common law as a means of assisting in addressing the integrity requirement. This rule requires the production of an original writing, recording of photograph where the content of the item is material to the case, unless the original is unavailable for some reason other than the fault of the party seeking to adduce the evidence (Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman and Bryant: the Law of Evidence in Canada, 4^th ed. (Toronto: Lexis-Nexis, 2009), at para. 18.31). The common law rule has evolved to the point that it is not considered to be an absolute criterion for the admissibility or exclusion of an item of evidence, but rather “a general guide for choosing the appropriate method of proof” (R. v. Shayesteh (1996), 1996 CanLII 882 (ON CA), 111 C.C.C. (3d) 225, [1996] O.J. No. 3934 (C.A.), at para. 90; R. v. Papalia, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256 (S.C.C.), at paras. 6-9, 260; R. v. Betterest Vinyl Manufacturing Ltd., [1989] B.C.J. No. 2324 (C.A.), at para. 23; R. v. deKock, 2009 ABCA 225 (C.A.), at para. 26).

[62] The fact that the photographs in question in this case were recorded on cell phones or a tablet brings into play special considerations. The Evidence Act, R.S.O. 1990, c. E-23 contains specific provisions about establishing the authenticity and integrity of evidentiary materials that qualify as “electronic records” within the meaning of section 34(1) of the Act. The phrase “electronic record” is broadly defined as follows:

“electronic record” means data that is recorded or stored on any medium in or by a computer system or other similar device, that can be read or perceived by a person or computer system or other similar device, and includes a display, printout or other output of that data, other than a printout referred to in subsection (6).

[63] For the purposes of this definition, the word “data” is also broadly defined in section 34.1(1) of the Act as meaning “representations, in any form, of information or concepts.” Photographs generated by electronic devices such as cell phones or tablets, including screenshots, have been found to constitute “electronic records” for the purposes of similar statutory schemes (R. v. Nardi, 2012 CarswellBC 2801 (P.C.), at para. 25; R. v. Akumu, 2017 BCSC 403 (S.C), at para. 14).

[64] Section 34.1(4) of the Evidence Act confirms the low threshold test at common law for establishing the authenticity of electronic documents at the admissibility stage. It provides that the standard of proof required is the introduction of some evidence capable of supporting that the electronic document is what the party adducing it claims it to be:

Authentication

34.1(4) The person seeking to introduce an electronic record has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be. 1999, c. 12, Sched. B, s. 7 (2).

[65] Sections 34.1(5) to (7) of the Evidence Act set out threshold criteria for establishing the integrity of the electronic document which is proposed to be admitted as evidence, as follows:

Application of best evidence rule

34.1(5) Subject to subsection (6), where the best evidence rule is applicable in respect of an electronic record, it is satisfied on proof of the integrity of the electronic record. 2000, c. 26, Sched. A, s. 7 (1).

Same

(5.1) The integrity of an electronic record may be proved by evidence of the integrity of the electronic records system by or in which the data was recorded or stored, or by evidence that reliable encryption techniques were used to support the integrity of the electronic record. 2000, c. 26, Sched. A, s. 7 (1).

What constitutes record

(6) An electronic record in the form of a printout that has been manifestly or consistently acted on, relied upon, or used as the record of the information recorded or stored on the printout, is the record for the purposes of the best evidence rule. 1999, c. 12, Sched. B, s. 7 (2).

Presumption of integrity

(7) In the absence of evidence to the contrary, the integrity of the electronic records system by or in which an electronic record is recorded or stored is proved for the purposes of subsection (5),

a) by evidence that supports a finding that at all material times the computer system or other similar device was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic record, and there are no other reasonable grounds to doubt the integrity of the electronic records system;

b) if it is established that the electronic record was recorded or stored by a party to the proceeding who is adverse in interest to the party seeking to introduce it; or

c) if it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceeding and who did not record or store it under the control of the party seeking to introduce the record. 1999, c. 12, Sched. B, s. 7 (2).

[66] These provisions respecting the integrity of electronic records are also referred to in the case-law as the “best evidence” provisions. The rules seek to ensure that the electronic document that is adduced as evidence accurately reflects the original information that was inputted or recorded on the device. The concept of an original document, recording or photograph is not readily applicable to electronic documents, and the nature of these documents is such that it is often difficult to provide direct evidence of their integrity. For this reason, statutory provisions such as sections 34.1(5) to (7) dispense with the requirement of an original record and establish other means of satisfying the integrity requirement (Sylvestre v. Sylvestre, 2018 SKQB 105 (Q.B.), at para. 22). As in the case of authentication, the statutory criteria for determining the integrity of an electronic document at the admissibility stage are threshold criteria only. The admissibility criteria are set low, and as a general rule, concerns regarding the accuracy and reliability of the records, including whether they have been altered, should be resolved by the trier of fact after hearing all of the evidence. It is at that stage that a determination should be made as to whether the item in question should remain in the evidence or be excluded, and the weight that should be accorded to it if it is not excluded (see R. v. J.V., 2015 ONCJ 837 (O.C.J.); Sylvestre, at paras. 24-25).

[67] The general rules respecting admissibility of evidence must also be considered before allowing real evidence to form part of the record. For example, relevance to an issue in the case is always a condition of admissibility. In addition, the court retains a residual discretion to exclude real evidence in any form if its prejudicial effect would outweigh its probative value (R. v. Gallant, 1965 CarswellPEI 5 (S.C.); Draper v. Jacklyn, 1969 CanLII 6 (SCC), [1970] S.C.R. 92, (S.C.C.); R. v. S. (C.L.), 2009 CarswellMan 637 (Man. Q.B.); R. v. Akumu, at para. 28). Furthermore, even if a photograph or other real evidence is admitted into evidence, the court must also consider how much weight to give it, if any. Where there is evidence that a photograph has been altered, edited or changed in some manner, it may ultimately be excluded from the evidence or be given little weight on the basis of the criteria set out in R. v. Creemer and Cormier (see also R. v. Andalib-Goortani, at para. 29).

[68] Turning to the two photographs which the Applicant adduced in support of her allegation that the parties attended the August 17, 2014 wedding together, the Applicant testified that both photographs were taken using her cell phone. Although the Respondent consented to the admission of the photographs into evidence, I note that no evidence was adduced to support the basic integrity requirements for threshold admissibility purposes. In any event, the photographs do not in my view establish that the parties attended the wedding on August 17, 2014 as a couple. The Respondent insisted that the Applicant had doctored the dates which were marked on the photographs. With respect to the date of August 17, 2014 that are indicated on the photographs, I note that there is clearly an “edit” function next to the date on each photograph. The Applicant did not address or explain this feature at any point in her testimony. Furthermore, although the Applicant testified that both photographs were taken on the same date using her cell phone, the format of the headings on the two photographs is different. In particular, the photograph which the Applicant states was taken at her home, located on p. 12 of Exhibit 3, bottom left, includes the notation “Hamilton-Westdale South,” presumably to note the location where the photograph was taken. The second line of the heading includes both the date and time of the photograph. However, the picture of the parties at the bottom right of p. 12 does not include a notation regarding the location, and the date is located on a separate line from the time of the photograph. The Applicant did not provide an explanation for these discrepancies, and they raise serious concerns regarding the credibility of the Applicant’s evidence that the photographs were taken on the same day using the same cell phone. Finally, it is not clear to me that the parties were wearing the same attire in both photographs. The Respondent’s bowtie appears to be different in the two photographs, as does the Applicant’s outfit. In any event, even if the photographs were in fact both taken at the time of the wedding in August 2014, I nonetheless find that the Respondent’s evidence that the parties did not attend the event as a couple was overall more credible than the Applicant’s evidence on this issue.

E. Documentary Evidence Respecting the Parties’ Relationship Status in 2014

[69] In assessing the nature of the parties’ relationship as of August 2014, I have also considered documentation completed by the parties around this time. I find that at some point after March 2014, the Applicant reported a change in her relationship status for the purposes of the Ontario Trillium Benefit Notice so that she could begin receiving this benefit directly, and that this change remained in effect as of August 8, 2014. Although the Applicant alleges that the parties reconciled after that time, she did not adduce any evidence of having updated her relationship status again for the purposes of this benefit after the alleged reconciliation. In addition, the Applicant completed her citizenship application on August 4, 2014 and emailed it to the Respondent for him to submit on her behalf on August 26, 2014. On this extremely important document, she noted that she was legally separated. When she was cross examined on this point, she insisted that the Respondent told her to state that she was legally separated, since the status noted on this document should match her status as noted in her Income Tax documents. This explanation does not make sense, because the parties were not separated in 2013 and their tax documents for that year would have therefore indicated that they were married. The Respondent confirmed that he described his status as married in his 2013 Income Tax Return. Their 2014 Income Tax Returns would not have been due or completed until many months later, in early to mid-2015. Accordingly, her explanation was simply not credible.

F. Family Routines from August to December 2014

[70] The Applicant alleged that commencing in August 2014, the parties resumed their usual routine that existed prior to March 7, 2014 of spending regular time together as a couple with the children on weekends either at the Respondent’s condominium in London or at her residence in Hamilton. The Respondent insisted that this did not occur. Again, I accept the Respondent’s evidence over that of the Applicant on this issue. Focussing on the period from August to December 2014, the Applicant did not provide any specifics respecting outings or activities which she and the Respondent participated in or which the parties and the children engaged in as a family during this time frame. Furthermore, although the parties lived in separate cities, there is no documentary evidence of loving communications between them at any point after March 2014 that would suggest the existence of a conjugal relationship or efforts to repair their relationship.

G. The Trip to Niagara Falls in December 2014

[71] In support of her position that the parties reconciled in the summer of 2014, the Applicant alleged that she and the Respondent took the children on a family trip to a waterpark in Niagara Falls over the Christmas break in late 2014. She testified that the Respondent booked this trip, that the family stayed in Niagara Falls for a couple of days and that they all shared one room in a hotel. She thought that they had stayed at the Ramada Inn, which she recalled had an indoor pool and waterpark area. Exhibit 3 included three photographs dated December 26, 2014 which the Applicant alleged related to this trip. There was one photograph of the Respondent and Abdullah in a waterpark, a second photograph of Rand in a waterpark and a third photograph of the Applicant alone in a waterpark area.

[72] The Respondent testified that the parties visited various waterparks in Niagara Falls on numerous occasions with the children during their relationship. He recalled the trip to Niagara Falls in December 2014, and adduced as evidence a booking confirmation indicating that he had reserved a room at the Americana Waterpark Resort and Spa from December 26-28, 2014. He adamantly denied that the Applicant was present with him and the children during this weekend trip, and suggested that the Applicant had either altered the date on the photograph of herself or that she had booked a room at a separate hotel that weekend to spend time with the children on her own. Mr. Sherman cross examined the Respondent at great length with the goal of having him acknowledge that the surroundings for all of the photographs reflected the same location. This included cross examination on a video recording of the Americana Waterpark area. The Respondent did not acknowledge that the location of the photographs of him and the children was the same as the location of the photograph of the Applicant.

[73] I note that the Applicant did not adduce evidence as to who took the pictures of the family members at the waterpark or to satisfy the threshold integrity requirement. In any event, the photographs and the evidence when considered as a whole do not in my view establish that the parties spent this period in the same hotel room in Niagara Falls, that they were together as a couple as of that time or that they were working on reconciling their relationship. The Applicant indicated in her own testimony that she believed they had gone to the Ramada Hotel, which was inconsistent with the documentary evidence that the Respondent stayed at the Americana Waterpark Resort. I carefully compared the photographs and considered the Respondent’s evidence on cross examination relating to the video recording of the Americana Waterpark. Although there are certainly some similarities in the surroundings between the photograph of the Applicant and the other photographs of the Respondent and the children, I could not conclude on a balance of probabilities that the locations were in fact the same. In fact, it appeared that the location of the pictures of Rand and the Applicant may have been different from the location of the photograph of the Respondent with Abdullah. In particular, the base of the windows in the background of the pictures appears to differ. Furthermore, the Respondent commented several times that the surroundings and set-up for many of the waterparks which the family had visited over the years were all extremely similar. In any event, even if the parties both attended the same waterpark with the children during this period, this would not alter my conclusion respecting the separation/valuation date having regard for all of the other evidence. The Respondent emphasized that he wanted to have an amicable relationship with the Applicant for the sake of the children, and this sentiment was clearly reflected in email correspondence from him to the Applicant that was adduced as evidence at trial. Taking into account this mindset and objective, it is not unreasonable to expect that the parties would have joint family outings with the children despite their separation.

H. The Parties’ Relationship Status as Noted on their 2014 to 2016 Tax Returns

[74] The Applicant’s allegation that the parties remained together as of December 2014 must be considered in conjunction with all of the other evidence discussed above, which I find suggests to the contrary. Furthermore, the parties both declared themselves to be separated as of December 31, 2014 on their 2014 Income Tax Returns. In fact, they also both stated that they were separated on their subsequent Income Tax Returns for 2015 and 2016. The Applicant’s explanation for declaring her status as separated on her Income Tax Returns was that the Respondent pressured her to do so, stating that there would be significant tax-related benefits to describing themselves as separated for tax purposes. In support of this assertion, she portrayed the Respondent as a controlling husband who demanded that she follow his direction. Again, I did not find the Applicant credible in this regard. The Respondent adamantly denied ever pressuring the Applicant to lie about her marital status on her Income Tax Returns. He testified that it would have been much more beneficial to him from a tax standpoint to declare his status as married, particularly once he established his corporation. Furthermore, I did not find the Applicant credible respecting her allegations of controlling and abusive behaviour by the Respondent generally. As one example of his allegedly controlling behavior, the Applicant talked about the Respondent placing restrictions on her ability to drive with the children. However, the evidence revealed that until April 2013, the Applicant had a vehicle for her use and the Respondent did not have access to a car. Furthermore, it is clear that the Applicant frequently drove with the children to and from London. I have already addressed my reasons for preferring the Respondent’s version of events regarding the March 7, 2014 domestic incident over that of the Applicant. I note as well that the Applicant made serious allegations of a history of physical, emotional and financial abuse by the Respondent towards both her and the children in her Form 35.1 Affidavit. However, apart from the domestic incident on March 7, 2014, she did not adduce any evidence of historical physical abuse towards her or the children, and she did not describe any emotional abuse by the Respondent towards Rand or Abdullah. In addition, the evidence indicated that the Respondent was generally supportive and understanding in relation to the Applicant’s career choice and her decision to stay in Hamilton to complete her training. He testified that the parties’ original plan when they came to Canada was to be together in the same city. However, he stated that the Applicant unilaterally chose a different course to pursue her preferred career path. Overall, the evidence did not support the Applicant’s characterization of the Respondent as an aggressive and demanding husband who insisted that she follow his directions without question.

I. The Applicant’s Career Planning

[75] The Applicant gave evidence respecting her career planning in further support of her position that the parties remained together after August 2014. She testified that the parties frequently discussed plans for her career and whether she could pursue opportunities in London so that the family could be together. However, I find that she did not make any concerted effort to do so. She testified that she spoke to her supervisor in Hamilton in 2014 about possibly finishing her Ph.D. earlier and moving to London, or possibly connecting her with some potential supervisors in London so that she could finish there, but stated that “he didn’t know much.” That appears to have been the extent of her inquiries in this regard at that point. She decided instead to stay in Hamilton and testified that her plan was to explore post-doctoral fellowships in London after the completion of her Ph.D. She claimed that she completed the Arab board exam for pathology in 2014 with the thought that this could help her to obtain a clinical fellowship in London eventually. However, without further explanation, she then testified that in the end, she chose to pursue a clinical fellowship in pathology at McMaster rather than in London.

[76] The Applicant alleged that she continued to make attempts in 2015 and 2016 to obtain a position in London so that she and the children could be with the Respondent on a full-time basis. I find that the Applicant did explore the possibility of securing a position in London from time to time, but that these inquiries were not with a view to facilitating a reconciliation or ongoing conjugal relationship with the Respondent. In an email from the Respondent to the Applicant dated November 3, 2015, the Respondent commented that the Applicant had told him that she was not interested in working in London, and that she had received two job offers from McMaster University and the University of Toronto. He discussed how the Applicant had previously told him that she would be finishing her Ph.D. in early 2016, and that she had given him her C.V. in the past to explore opportunities in London. He further advised the Applicant of a possible job opportunity in London, and stated “I thought it is my responsibility to pass this message to you and you can decide what is the best for your career.” He also commented that the woman he had spoken to about the job opportunity in London had mentioned that she did not think that the parties’ separation would prohibit spousal employment support for Western University Faculties. This was a program that gave priority to spouses for employment purposes. The content and tone of this email are not reflective of two people in a conjugal relationship planning a life together, or in the process of reconciling; rather, the email clearly indicates that the Applicant was not interested in working in London and that the parties remained separate and apart. I found the Applicant to be evasive and unconvincing in responding to cross examination about the contents of this email. Her only explanation was that the Respondent would write illogical things when he was upset. The Respondent testified that he was committed to helping the Applicant to obtain work in London, as this would facilitate his access with the children and avoid long drives on the highway. The Applicant responded to the Respondent’s November 3, 2015 email by providing the Respondent with a copy of her C.V., and the Respondent did follow up in making further inquiries on her behalf. His comments in one email which he wrote to a colleague suggested that the parties were still together. However, those comments were completely inconsistent with those which he made in his email to the Applicant on November 3, 2015, and the Respondent clarified that he did not want to mention the separation because he felt that this would undermine the Applicant’s chances of being accepted for a position. He stated that he later spoke candidly in person with this colleague about the parties’ relationship status. The Applicant testified that as a result of these inquiries, she planned an observorship in London for July 2016. However, she subsequently cancelled it, alleging that her Ph.D. supervisor did not give her the time to do it. She did not provide any documentary evidence in support of this assertion. As indicated above, she ended up accepting a clinical fellowship in pathology at McMaster University in Hamilton in March 2017, rather than a position in London. The Respondent testified that the Applicant had been offered a clinical fellowship in pathology in London as well around that time, but that she had decided against taking that position because the fellowship was unfunded and she would have had to search for scholarship funding. The Applicant did eventually plan and participate in an observorship in London in August 2017. However, there was no evidence of any concerted effort on her part during the period from November 2015 to August 2017 to find a position in London so that she and the children could reside with the Respondent on a full-time basis.

J. The Parties’ General Affairs and Activities in 2015

[77] The evidence regarding the parties’ general affairs and activities in 2015 further supports my conclusion that they remained separate and apart with no reasonable prospect of resuming cohabitation throughout that year. The Respondent indicated on his citizenship application on January 18, 2015 that he was legally separated. He also noted that he was separated on his passport application dated August 23, 2015. The Applicant acknowledged in cross examination that she also applied for a passport sometime in 2015, but stated that she could not recall if she declared herself to be separated or married. When she was questioned about the identity of her guarantor for the passport application, and how long she had known them, she was evasive and embarked upon a discussion about how immigrants to Canada are “not completely truthful” in applications, including passport applications. This discussion dealt a further significant blow to the Applicant’s overall credibility.

[78] Although the Applicant insisted that the parties remained in a conjugal relationship in 2015, she did not describe any romantic activities or events which she and the Respondent participated in as a couple in 2015. I note that during this period of time, Abdullah would have celebrated his tenth birthday on April 21, 2015, and Rand would have celebrated her twelfth birthday on June 9, 2015. There was no evidence adduced of a joint celebration of these two very important events or of any other joint outings with the children from January to late December 2015. The Applicant did adduce a photograph of her with the Respondent and both children at the Respondent’s citizenship ceremony on August 19, 2015. She relied on her presence at this ceremony and the picture to support her position that the parties were still together as a couple as of that date. Again, I prefer the Respondent’s evidence over the Applicant’s respecting this event. He explained that he asked the Respondent if she could bring the children to his ceremony, since it was on a Wednesday and he did not have time to pick them up. He testified that he was pleasantly surprised that the Applicant brought them, and that the photograph was taken at the invitation of the judge who presided at the hearing. He explained that the photograph adduced at trial was taken on the Applicant’s cell phone, and that his photographs of the event were of just him, Rand and Abdullah. He also explained that his colleagues had a major celebration for him later that same day to mark his citizenship, but that the Applicant was not included in that event. In addition, he noted that the Applicant did not invite him to her citizenship ceremony and that he did not attend. Furthermore, he emphasized that the Applicant had a celebration to mark the completion of her Ph.D. studies, for which her mother travelled from the United States, but that he was not invited to the celebration and did not attend. The Applicant did not dispute the evidence relating to her own citizenship and graduation celebrations. I found the Respondent to be very credible in his evidence on these points, and his evidence supports my conclusions respecting the separation and valuation date in this matter.

K. Counselling with Dieter Staudinger: October 2015 to March 2016

[79] In further support of her position respecting the separation and valuation date, the Applicant provided evidence respecting counselling sessions which she and the Respondent attended with Mr. Dieter Staudinger. The Applicant stated that the parties were still together as a couple in the fall of 2015, and that she arranged for individual counselling with Mr. Staudinger to deal with the challenges in their relationship and various other stressors in her life. Her Intake Form for this counselling, which she completed in early October 2015, indicated that she was married, that she was using contraception regularly, and that her goals were to resolve her relationship issues. She alleged in the form that the Respondent hits her when he is angry with her. Mr. Staudinger testified at trial, and explained that he is a spiritual practitioner of psychotherapy. I find that the Applicant’s first individual session with him occurred on October 9, 2015. Mr. Staudinger described this meeting as an Intake session in which he sought to gain a sense of the issues from the Applicant’s perspective and whether he felt he could assist her. The Applicant had a second individual session with him, but Mr. Staudinger could not identify the date of that session. According to Mr. Staudinger, the focus of the individual sessions was relationship counselling to resolve differences in the parties’ marriage and problems with communication. After the second individual session with the Applicant, the counselling expanded to include the Respondent.

[80] The parties had four joint sessions with Mr. Staudinger from November 2015 to January 2016. Two of those sessions occurred in November 2015. The third joint session occurred on December 13, 2015 and the final session was on January 6, 2016. At that point, the counselling stopped because the Respondent did not wish to participate any further.

[81] Mr. Staudinger’s impressions were that the parties attended joint sessions with him to work on appropriate communication skills, how to spend more meaningful time together and with their children and how to effectively co-parent the children. He relayed that he talked to the parties about meeting each other’s needs in a relationship, and how to be friends with each other. In addition, he indicated that they both completed a “homework” assignment about what they thought a friend should be, and that they referred to each other as husband and wife. Mr. Staudinger explained that from his perspective, the parties wished to work on their relationship, but added that it is often the case that one party is more committed than the other in counselling. He acknowledged that the Respondent did not seem as enthusiastic about the counselling as the Applicant, and that he could not speak to the real motives for why the Respondent attended. He indicated that he asked the Respondent several times to complete and submit an Intake Form, but that the Respondent never did so. He also mentioned that he did not realize that there was an issue as to whether the parties were actually together or separated until the third session on January 6, 2016, when the Respondent seemed to raise the issue in the context of a discussion about his views that his sexual needs had not been met. In particular, he noted that the Respondent talked in that session about there not being a marriage with the Applicant. Mr. Staudinger testified that the parties talked about problems with sexual intimacy in the second and third sessions, and that they had intended to not have sexual interactions, but he could not comment on whether they sexually intimate after that point. His understanding was that the parties saw each other on weekends and during holiday periods, and that they had taken a couple of family trips together, including a trip to Barcelona.

[82] The Respondent had a very different version of the purpose and nature of his participation in the sessions with Mr. Staudinger. He stated that he agreed to attend the sessions at the request of the Applicant, because she told him that she was experiencing anxiety and depression. His understanding was that Mr. Staudinger was providing psychotherapy support for the Applicant. His uncontroverted evidence was that the Applicant had received this type of supportive counselling when she was in Iraq as well. In addition, he felt that he and the Applicant were attending to work on issues relating to their separation, including how to manage child-related issues and their manner of communicating with each other, with the expectation that improved communication strategies would help the Applicant to deal with her challenges. The Respondent adamantly denied that he attended for the purpose of marriage counselling. He testified that by the third session, he began to realize from some comments that Mr. Staudinger had made that the focus of the sessions from Mr. Staudinger’s perspective was out of synch with his own expectations and understanding of the purpose of the counselling. He indicated that he squarely raised this issue with Mr. Staudinger and the Applicant during this session and explained that there was no marriage at that point. In addition, at a later point in his testimony, the Respondent commented that during this third session, the parties discussed the issue of his access with the children, and the need for flexibility in the access arrangements. In particular, he noted that Rand was resisting going to London to visit with him on weekends on a regular basis because she wished to spend more time in Hamilton with her mother and her friends on weekends.

[83] I have carefully perused the evidence relating to the counselling with Mr. Staudinger and the other events surrounding the counselling sessions. For the reasons discussed above, I do not accept the Applicant’s assertion that the parties were together as a couple as of September 2015, when the Applicant contacted Mr. Staudinger. I find that the Applicant had a hope of repairing the relationship and reconciling with the Respondent in approximately August 2015, and that this was one of the reasons for her reaching out to Mr. Staudinger in September 2015. However, I am not satisfied that the Respondent shared this interest in a reconciliation. With respect to the Applicant’s thoughts around this time, I note that while giving evidence respecting the parties’ financial affairs during this period, the Respondent commented that the Applicant brought up the idea of a possible reconciliation in August 2015. He stated that this occurred during a period when he stayed at the Applicant’s home in Hamilton for a few days to help care for Abdullah, who had broken his foot and needed to be carried around. His evidence was that he clearly told the Applicant that he did not wish to reconcile.

[84] I find that while the Applicant may have started counselling to discuss her own interest in exploring the possibility of reconciliation, the focus of the counselling shifted after her two individual sessions. It is clear that around that time, the Applicant attended at her counsel Mr. Sherman’s office and gave him instructions to take further legal steps in relation to the parties’ separation. On October 30, 2015, prior to the first joint session between the parties and Mr. Staudinger, Mr. Sherman sent a letter to the Respondent in which he confirmed that the Applicant wished to negotiate a resolution of all outstanding issues arising as a consequence of the parties’ marriage breakdown. Ms. Sherman urged the Respondent to retain and instruct counsel at the first opportunity. The Respondent received this letter on November, 3, 2015, before the joint sessions with Mr. Staudinger began.

[85] I find that the Respondent retained a clear intention to remain separate and apart both before, during and after the counselling sessions. I accept his evidence that there was a clear disconnect between Mr. Staudinger’s understanding of the purpose of the sessions and his own understanding and expectations respecting the counselling. Mr. Staudinger acknowledged in his evidence that the Respondent raised this disconnect during the third joint session. I find that this divergence in understanding arose for three reasons. First, it appears that the Applicant’s objectives regarding counselling shifted after her individual sessions ended. There is no evidence that Mr. Staudinger was informed of the letter from Mr. Sherman dated October 30, 2015, and this may explain why he continued to view the Applicant’s goal for the sessions as trying to work on repairing the parties’ relationship. Second, although Mr. Staudinger held an Intake appointment with the Applicant to gain an understanding of her concerns and objectives respecting the counselling, he failed to do the same with the Respondent. Third, Mr. Staudinger never obtained an Intake Form from the Respondent, in which the Respondent would have outlined his goals and expectations respecting the sessions. Mr. Staudinger and the Respondent each placed responsibility for this on each other, but it is unnecessary for me to decide who is to blame. The important point for the purposes of the issues to be determined in this case is that the lack of an Intake Form from the Respondent explains in part how the misunderstanding regarding the purpose of the counselling sessions evolved.

[86] My conclusions respecting the Respondent’s intention in participating in the counselling with Mr. Staudinger have been influenced in part by my overall assessment of Mr. Staudinger’s evidence. I find that there were significant concerns regarding Mr. Staudinger’s reliability, his alignment with the Applicant and the level of his attention to important details. These concerns are based on the following:

a) Although he insisted that he had given the counselling Intake Form to the Respondent and asked him to complete it many times, there is no documentary evidence confirming that he sent the form to him. Mr. Staudinger indicated that he had sent the Respondent several emails trying to set up dates for sessions, and one would expect that one of those emails would have attached the Intake form. The Respondent testified that he checked all of his emails leading up to and around the joint counselling sessions and did not find an email from Mr. Staudinger or his office attaching the form.

b) Although Mr. Staudinger had a confidentiality pledge with his clients, he produced a letter to the Applicant dated September 20, 2017 outlining the dates of the joint sessions and his perspective of the reasons for the counselling, without first obtaining the consent of the Respondent.

c) Mr. Staudinger made an error in the September 20, 2017 letter respecting the date of the first joint session with the parties. He testified that he thought the correct date of the first session was November 9, 2015 rather than September 9, 2015, but the Respondent questioned the correctness of that date as well.

d) As noted above, Mr. Staudinger had individual sessions with the Applicant before joint counselling sessions began, but failed to do the same with the Respondent to ascertain his perspective of the reasons for the joint sessions.

e) In addition, he continued to provide ongoing counselling for the Applicant, as recently as three months prior to the commencement of the trial.

f) He continued to describe himself as a “registered psychotherapist” in documentation which he provided to clients as of the fall of 2015, despite the fact that the use of this designation as of that time was limited to professionals who were registered as members of the College of Registered Psychotherapists of Ontario by virtue of section 8 of the Psychotherapy Act, 2007, S.O. 2007, c. 10, Schedule R., which was proclaimed in force on April 1, 2015. Mr. Staudinger explained that there was a great deal of confusion around this time about the rules regarding the use of this designation, due to changes in legislation, and that he held an honest belief at the time that he was compliant with the law at the time.

[87] I note that even if I were to accept that the parties had some discussions during their joint sessions with Mr. Staudinger about the difficulties in their relationship and the possibility of reconciliation, I am not satisfied that any such discussions were sufficiently significant at least from the Respondent’s end to effect an actual reconciliation or to trigger a reasonable prospect of resumed cohabitation. As discussed above in reviewing the law, simply raising the possibility of resuming a conjugal relationship does not mean that parties are no longer separate and apart. Likewise, an interest on the part of only one party in exploring reconciliation will not break a period of separation. Furthermore, for valuation purposes, a prospect of resumed cohabitation must be reasonable in order to move the date forward. I find that even if there were some general discussions about the possibility of reconciliation during the first two joint sessions with Mr. Staudinger, they were not followed up by any steps towards achieving such a goal. The Respondent clearly expressed by the third joint session that the parties remained separated, and that he intended the separation to continue.

L. The Respondent’s Alleged Efforts to Salvage the Relationship in November 2015

[88] The October 30, 2015 letter from Mr. Sherman to the Respondent poses a significant problem for the Applicant’s version of the purpose of the sessions between the parties and Mr. Staudinger. When the Applicant was questioned about this letter, she explained that by that point, she had become fed up with the load of caring for the children on her own and the way the Respondent was treating her, and decided that she wished to separate. However, she asserted that the Respondent talked her out of this plan and made numerous promises to her, including a promise to participate in marriage counselling. She also noted that the Respondent had previously planned a trip to Beirut to visit his family on his own in December 2015, and that he told her at that point that he would take her and the children as well to see her family as a way of “changing the atmosphere.” The Applicant also stated that the Respondent cajoled her financially into trying to work things out in early November 2015 by giving her $10,000.00 to apply towards the purchase of a new car.

[89] Again, I did not find the Applicant’s evidence about the Respondent’s alleged positive efforts to keep her in the relationship in November 2015 to be credible. For one thing, this testimony was completely at odds with her comments in her application that the Respondent bullied and intimidated her in an effort to prevent her from leaving him. Her evidence that the Respondent planned a trip to Beirut on his own earlier in 2015 to visit with family is frankly very difficult to reconcile with her assertion that the parties continued to be in a conjugal relationship throughout that time, given that she also had family members in Lebanon. Furthermore, her claim that the Respondent gave her $10,000.00 in early November 2015 to put towards a new car as a type of peace offering to keep the relationship intact was not credible. The Applicant acknowledged that she already had a car at the time, and the evidence indicates that she never bought a new car after receiving this money. The Respondent’s uncontroverted evidence was that the Applicant sold her car in approximately March 2016 and then asked him at that point if he could help her to get a new vehicle. The Respondent assisted by giving her his car to use in March 2016, after he bought a new car in early 2016. The Respondent acknowledged that he gave the Applicant a cheque in the amount of $10,000.00 on November 8, 2015, but adamantly denied that he did so as a gift towards the purchase of a new car to encourage the Applicant to remain in a relationship with him. As discussed in further detail below, he gave credible evidence that he paid the Applicant this money because she requested a lump sum amount for retroactive child and spousal support which she claimed he owed her.

[90] The Applicant’s entire narrative about the parties’ relationship still being intact as of the fall of 2015 and the Respondent’s alleged concerted efforts to keep the relationship intact in early November 2015 is also completely at odds with the contents of an email which the Respondent wrote to his criminal lawyer on November 3, 2015. In that email, the Respondent stated that he had been away from the Applicant “for some time now,” and that they were legally separated. He also talked about the Applicant becoming “dangerous in her behaviour” towards him, and threatening him many times, and expressed concern that she would accuse him of anything. The Respondent asked for advice about good Family Law lawyers in Hamilton to proceed with a divorce.

M. The Financial Arrangements for the Support of the Applicant and Children

[91] A review of the financial arrangements between the parties prior to and after March 7, 2014 further supports my conclusion that the parties have remained separate and apart with no reasonable prospect of a resumption of cohabitation since that date. The parties agreed to admit as evidence copies of several cheques which the Respondent made out to the Applicant from March 2014 until December 2, 2017 (Exhibit 6). The Applicant argued that these cheques were similar to the types of cheques that the Respondent provided to her prior to March 7, 2014 to pay for household bills and necessities, and thus they did not reflect any change in the manner in which the Respondent supported her and the children after March 2014. She explained that the amount of the cheques would vary from month to month depending on what she expected the household expenses and children’s needs would be. By contrast, the Respondent argued that the financial arrangements for the support of the Applicant and the children changed significantly after March 2014. He stated that prior to that time, he would generally leave the Applicant a few cheques for emergency purposes only, but that otherwise, he would leave her cash when he came to visit her and the children. According to the Respondent, the parties would discuss the appropriate amount of cash required based on the Applicant’s estimate of the upcoming expenses, and the amount that he left the Applicant would therefore vary from visit to visit. He indicated that the Applicant would also pay for necessities for her and the children from her own OSAP funds. With respect to other household expenses, the Respondent testified that he wrote post-dated cheques from his account to the landlord in Hamilton to pay the rent in Hamilton, and that the Applicant would pay most household bills directly from his account because he had given her online access to the account. The Respondent testified that these patterns respecting the parties’ financial affairs changed after March 2014. He indicated that after that point, he began to make cheque payments to the Applicant in the nature of support, based on agreements which the parties reached from time to time, and that the other financial arrangements described above ceased. He testified that the only other payment that he made for the benefit of the Applicant was for her car insurance, which he explained he could not change because it came out of a bank through McMaster University.

[92] Again, I found the Respondent much more credible respecting the nature of the financial arrangements between the parties prior to and after March 2014. I accept his evidence that as of July 2014, he began to make fairly regular cheque payments to the Applicant in the nature of support payments. The financial dealings between the parties after March 7, 2014 were in my view reflective of a separated couple. One of the fundamental problems with the Applicant’s version of events is that she was unable to provide proof of regular cheque payments made to her prior to March 2014. A review of the cheques which the Respondent provided after March 2014 shows some irregularity with respect to the frequency and amounts of the cheques. However, the Respondent was able to provide detailed explanations for these irregularities and for changes in the amounts that he paid from time to time. I was impressed with the details which the Respondent was able to provide respecting the history of financial arrangements and payments, as compared to the Applicant’s very vague and general discussions about the financial arrangements. The highlights of the details which the Respondent provided were as follows:

1. The Respondent explained that the cheques to the Applicant for support started in July 2014, after the criminal charge was dropped, because he could not contact the Applicant prior to that time. He recalls the Applicant asking him in approximately July 2014 for retroactive support from March 2014, and that he explained to her at that time that he could not pay significant or regular amounts, since he had accumulated a very high legal bill for the criminal case and his income was still quite low. He testified that the payments which he made from July 2014 until December 2014 were inconsistent for these reasons, and that he essentially paid the Applicant whatever amount he could afford from month to month during that period.

2. He recalled that when he secured the position of Assistant Professor in October, 2014, he made arrangements with the Applicant to increase his support payments. This increase is in fact reflected in the cheques which the Respondent paid from November 2014 onward, although there were some variations in the amounts paid. The Respondent gave credible testimony that the parties agreed that the sum of approximately $3,000.00 per month was appropriate for spousal and child support, but that he would sometimes give the Applicant cash and then deduct those cash amounts from the monthly cheque payment.

3. The Respondent noted that he made two cheques out to Rand and Abdullah in March 2015. He explained that he did so because the children were saying at that time that the Applicant was accusing him of not paying for their needs. He clearly recalled a discussion with the Applicant about this issue, during which the Applicant promised that she would stop making such statements to the children.

4. The Respondent was able to explain the reasons for some cheques that were irregular in nature, including a payment of $750.00 which he made on December 6, 2014 for a registration fee for one of the children and payments which he made for orthodontic expenses.

5. The Respondent had a sound and detailed recollection of discussions which he had with the Applicant about finances starting in September 2015. He testified that he gave the Applicant a copy of his T4 every year starting in 2015, so that support could be reviewed. In addition, he indicated that he met with the Applicant in September 2015, and that they agreed that a monthly amount of approximately $4,000.00 would be appropriate based on his income at that time, payable by way of two cheques per month in the amount of $3,000.00 and $1,000.00 respectively. However, he had a clear recollection that the Applicant then came back soon afterwards and insisted that he pay her $4,000.00 per month retroactively from March 2014. This would have resulted in a lump sum of $20,000.00 being payable. The Respondent recalled telling the Applicant that he could not pay this amount, and testified that he received the October 30, 2015 letter from the Applicant’s counsel shortly thereafter.

6. The Respondent had a very clear recollection of discussions which he had with the Applicant about support payments after he received the letter from Mr. Sherman on November 3, 2015. He explained that up until that time, he and the Applicant had decided to avoid the court process and the involvement of lawyers because of the expense that this would entail and the fact that they were both busy with their careers. However, he realized after receiving the letter from Mr. Sherman on November 3, 2015 that the Applicant wished to proceed with the formal court process to finalize the separation and divorce. An email which he wrote to the Applicant dated November 3, 2015 confirms that the parties had previously reached the agreement referred to above that he would pay her $3,000.00 per month. In that email, he indicated that he was still willing to communicate with her directly about financial and other matters if she wished, and assured her that any agreement they reached would be subject to approval by the lawyers. He testified about a meeting that he had with the Applicant on November 7, 2015, after he wrote this email. He had a clear and detailed recollection of meeting the Applicant at Churchill Park near her home, of the Applicant providing him with DivorceMate printouts showing him the Table amounts for child support, which he referred to as the “child support times tables,” and the Applicant outlining her position regarding the amounts which he should have paid her for support since March 2014 based on advice that she had received from her legal counsel. The Respondent indicated that it was during this meeting that the Applicant requested a lump sum retroactive amount of $20,000.00. When the Applicant was asked on cross examination whether she met with the Respondent in November 2015 and presented him with DivorceMate printouts relating to support, she simply stated that she did not recall. If the parties were in fact still together at that time, as she alleged, one would have expected her to clearly deny that she produced these support calculation printouts.

7. According to the Respondent, he agreed to pay an amount for retroactive support commencing only from the date of his increase in income in October 2014, which he calculated to be in the amount of approximately $10,000.00. The Respondent asserted that the parties agreed that he would pay retroactive support in this amount, and that the $10,000.00 cheque which he wrote to the Applicant dated November 8, 2015 was on account of this payment. He also recalled the parties agreeing during this meeting that he would pay between $4,000.00 and $5,000.00 per month for child and spousal support on a prospective basis. The cheques provided after that time reflect such an increase. I found the Respondent very credible in relation to these issues

8. The Respondent also had a very clear recollection of receiving a telephone call from the office of Mr. Sherman, the Applicant’s counsel, in the spring or summer of 2016 indicating the support needed to be reviewed again. He recalled giving the Applicant a copy of his T4 in the summer of 2016, and the Applicant advising him at that time that she was looking for a new lawyer. He testified that the Applicant told him to expect a letter from a lawyer about the support issue. Although the Applicant initially denied in her testimony that she had been in contact with a Family Law lawyer at that time, she admitted that she had previously stated in a Settlement Conference brief that she had consulted with Mr. Sherman during this period.

9. The Respondent acknowledged that the amount of the cheques dropped to $3,000.00 per month for August and September 2016, and then to $2,000.00 per month commencing November 2016. He had a clear recollection and explanation for these changes. He testified that the Applicant began to work again in approximately July, 2016, and that she had refused two job offers with salaries of more than $135,000.00 from the University of Waterloo and University of Toronto. He testified that he and the Applicant clashed at that time about the financial arrangements, and that this dispute continued until February 2017. He was able to describe in detail discussions which he and the Applicant had about the Applicant’s opinion that if she completed a fellowship at McMaster, she could eventually work as a pathologist at a much higher salary. He had a recollection of both parties consulting with their counsel around this time, and explained that the conflict about the appropriate support payments “settled down a bit” after the parties sought the assistance of a mediator.

[93] The Respondent’s very detailed evidence respecting the financial arrangements for the support of the Applicant and the children after March 7, 2014 supports his position that the parties operated financially as a separated couple after that time.

N. The Trip to Lebanon in December 2015

[94] Despite the challenges which the parties experienced respecting financial matters leading up to November 2015, they decided to both take the children to Lebanon in December 2015. The Applicant relied on this trip as further evidence that the parties’ relationship remained intact as of that time. As previously indicated, she alleged that the Respondent decided in November 2015 to include her and the children in this trip as part of his effort to keep their relationship together. The parties both had family members in Beirut who they visited during this trip. The Applicant testified that the family members were all aware that they were still married, and that she would not have gone on this trip with the Respondent if she was not still his wife. She stated that in the Islamic culture, parties cannot be separated but nonetheless “hanging out together; there is nothing like that.” As with virtually all issues in this case, the Respondent had a completely different version of the events leading up to the Lebanon trip. He indicated that he began to plan a trip to Lebanon after he obtained his Canadian citizenship in August 2015. He wanted to take the children by himself, but expected that the Applicant would refuse so he suggested that she come as well. According to the Respondent, the Applicant initially declined the offer for her and the children to go, stating that her father had plans to visit in Canada. Accordingly, he booked the trip for himself in September 2015. However, the Respondent testified that the Applicant’s father’s visa application was subsequently rejected. He explained that once he and the Applicant resolved their financial issues during their meeting on November 7, 2015, he raised the issue of the trip again. It was only at that point that the Applicant agreed for her and the children to join the Respondent on the trip.

[95] Again, I prefer the Respondent’s version of the events surrounding the trip to Beirut to that of the Applicant. The Applicant’s evidence was at odds with the other evidence outlined above that clearly indicated that the parties remained separated during this time period. In addition, I find that the parties booked separate apartments for the time they spent in Lebanon. Furthermore, the uncontroverted evidence of the Respondent was that the parties did not engage in sexual relations during the trip, and that the Applicant spent significant periods of time during the trip with her family, apart from him. These important details are inconsistent with the Applicant’s insistence that the parties remained in a conjugal relationship and continued to be viewed by their respective families as a married couple at that time. The Applicant adduced numerous photographs of the parties and the children during the Lebanon trip. None of the photographs point clearly to an ongoing conjugal relationship between the parties at that time.

O. The Trip to Barcelona in March 2016

[96] The parties also both took Rand and Abdullah to Barcelona, Spain over the school March Break week in 2016. The Applicant relied on this family trip as well to support her position that the parties were still a couple at that time. The purpose of this trip was for Abdullah to participate in a soccer camp with the members of the Barcelona soccer team. The Applicant testified that the Respondent took the family on this trip as part of his effort to keep the parties’ relationship intact and spend more time with the children. She stated that the family all stayed together in the same lodging during this trip, that she and the Respondent shared a room and that they were sexually intimate with each other during the vacation. In support of her position that the parties remained in a relationship at this time, she adduced a number of photographs of her, the Respondent and the children during the trip.

[97] Predictably, the Respondent had a very different characterization of the Barcelona trip. He stated that the parties agreed to both go to Barcelona with Rand and Abdullah to share time with the children and be part of Abdullah’s soccer experience. He emphasized that he was determined to remain amicable with the Applicant for the sake of the children and to ensure that the children did not suffer from the separation. He acknowledged that he rented a furnished, two bedroom apartment in Barcelona, but testified that he did not share a room with the Applicant and that the parties were not intimate during the trip. I accept the Respondent’s characterization of the parties’ relationship at this time and the nature of their interactions over that of the Applicant. The Respondent was able to give numerous details regarding the sleeping arrangements in the apartment, explaining that the original plan was for him to share a room with Abdullah, but that the plan changed because Abdullah had an eye irritation for the first two or three days and wanted his mother to be in the room with him to help him. He stated that once Abdullah’s eyes cleared up, he and Abdullah shared one room and the Applicant and Rand shared the other one. The Respondent was also able to give details about spending most of his days at the soccer camp with Abdullah, while Rand and the Applicant toured the city. He acknowledged that he made a few outings with Rand and the Applicant during the day, and that the family did outings together at night. The photographs which the Applicant adduced of the trip do not support one party’s version of events over that of the other. There was one photograph of the parties together, in which the Applicant was holding onto the Respondent’s arm. However, the Respondent indicated that this was something that the Applicant did from time to time when the children took pictures of them. There was also a photograph of the Respondent in the Applicant’s home in Hamilton on the morning after the family returned from Barcelona. The Respondent explained that the flight returned to Toronto very late at night, and that it was not reasonable for him to drive all the way to London that same night. In discussing this stay at the Applicant’s home, he candidly offered up that he stayed at the Applicant’s house in Hamilton several times for various reasons after July 2014 to assist with the children. For example, he recalled staying at her home with the children when the Applicant went to Lebanon to complete her Arab board medical exam, on another occasion when she attended a conference, another time when she needed help with Abdullah because he had broken his foot and needed to be carried around, and for a few days in the summer of 2017 when the Applicant went to Niagara Falls to see her brother.

P. The Parties’ Property Purchases

[98] The trip to Barcelona in March 2016 must be considered in context with all of the other evidence relevant to the nature of the parties’ relationship around that time. In this regard, as indicated above, the Respondent testified that shortly after the Barcelona trip, he provided the Applicant with his current income information for the purpose of reviewing his support obligations, and he received a call from the Applicant’s counsel about support soon thereafter. Furthermore, in late 2015, the Respondent purchased a two bedroom condominium in London in his own name. On the charge relating to this property, which was registered on January 20, 2016, the Respondent indicated that he was separated and that the property was not ordinarily occupied by him and his spouse as a family residence at the time of the parties’ separation. Moreover, the fact that he bought a small two bedroom residence is inconsistent with the Applicant’s suggestion that the parties were actively making efforts to relocate her and the children to the London area so that she and the children could reside full-time with the Respondent.

[99] The Applicant also took steps to purchase a two bedroom condominium on Madonna Drive in Hamilton in her sole name in early 2016. This evidence also contradicts her evidence that the parties were actively engaged in efforts at that time to remain together and be in the same city full-time as a couple. The Applicant testified that the Respondent initially promised that he would be a guarantor on the mortgage, but that he changed his mind because he decided to purchase “some type of farm house” and apartments in London with a friend named Mohammed. She explained that when he withdrew from this offer, she had to fund the down-payment with some gold bars she had and money that her parents sent her. The Respondent acknowledged that he told the Applicant in the fall of 2015 that he would be the guarantor on a mortgage for her to purchase a home for herself, and explained that he backed out of this plan on the advice of his financial planner and lawyer in 2016. He testified that when he reneged on his offer to guarantee the Applicant’s mortgage, he decided to give her $5,000.00 towards the down-payment on the house instead, in the nature of support for her and the children.

[100] The evidence relating to the purchases of the condominiums in London and Hamilton point to the conclusion that the parties were moving forward in their lives and their financial affairs as separated individuals. It is significant that the charge which was eventually registered against the Madonna Drive property on June 14, 2017 in the Applicant’s sole name indicated that the Applicant was not a spouse. I find that the Applicant did not disclose this mortgage documentation when the Respondent’s counsel requested it from her several times during the court proceedings. She was extremely evasive at trial when she was questioned about why she had not responded to this disclosure request. At trial, she claimed that the notation that she was not a spouse was due to an error which the mortgage broker and her lawyer made in preparing the documents. She did not present as credible in her testimony regarding this issue or her failure to disclose the mortgage documents in a timely manner.

[101] The Applicant’s limited knowledge of the Respondent’s other business dealings in the London area in 2016 further support my conclusion that the parties remained separated. I find that the Respondent purchased a farm property in his own name as an investment for his future business plans in the summer of 2016, without consulting with the Applicant about the purchase. The Applicant suggested that he did this behind her back and without her knowledge while they remained together as a couple. I did not find that evidence credible. In her own evidence relating to the financing of the Madonna property, the Applicant stated that the Respondent told her that he was backing out of his proposal to be a guarantor for her because he was planning to purchase a farm property. Furthermore, the Respondent had a clear recollection of bringing the children to the property several times, and of occasions when the Applicant came to pick the children up from the farm. I find that the parties did not consult with each other about this purchase or discuss the details of the purchase because they remained separate and apart, with no reasonable prospect of resuming cohabitation.

Q. Activities with the Children in 2016 and 2017

[102] As part of her case respecting the separation/valuation date, the Applicant testified about a few occasions when she states she and the Respondent engaged in activities with the children in 2016 and 2017. I find that the parties did on occasion engage in joint activities with the children in 2016 and 2017, but that they did so for the sake of the children and in an effort to keep their separation amicable. For instance, the Respondent mentioned at several points in his testimony that he and the Applicant tried to celebrate birthdays together with the children. The Applicant adduced a photograph of the Respondent and the children in her residence on May 6, 2017, when she states that the family celebrated the Respondent’s birthday together. The Respondent testified that he arrived to pick the children up from the Applicant’s home that day, and the Applicant and children surprised him with a birthday cake. He stated that the Applicant left the home when he arrived and allowed him to stay at the house to have cake with Rand and Abdullah. The details of the photograph of this event support the Respondent’s version of events. The picture shows a cake before it was cut, and only three clean plates and forks rather than four.

[103] The Applicant also adduced as evidence several photographs which were taken in the London area. One set of photographs appears to have been taken during the period from July 24 to 26, 2016. The Applicant alleged that she and the children spent this time with the Respondent in London, and that they also visited with the parties’ mutual friends, Mooyad Ahmed and Dalal Abdulzahra, and their two children during that time. She explained that the Respondent had helped Mooyad to secure a fellowship in the surgery department in London, and that Mooyad had just moved his family to the London area. The pictures show a meal on a table in the Respondent’s home, the Respondent sitting on a rock in a park, and Dalal at a bowling alley with the four children. Notably, none of the photographs include the Applicant. The Respondent denied that he and the Applicant spent time as a couple in London during that time period. Based on my overall assessment of the parties’ credibility, I prefer the Respondent’s evidence over that of the Applicant. In any event, even if the parties did spend time together in London during this time period, I would conclude that they did so only as mutual friends of Dalal and Mooyad, and not as a couple, based on all of the other evidence regarding the status of their relationship at the time.

[104] The Applicant also entered as evidence a photograph of her, the Respondent and Abdullah in a park in the London area which she stated Rand took on July 31, 2016, in which she has her hand around the Respondent’s arm. She testified that this was taken during another family visit in London. The Respondent acknowledged that he went to the park with Abdullah and Rand on that date, but states that the Applicant simply met them there at the end of his visit to take the children back home. He reiterated that the Applicant would often hold his arm when Rand took pictures of them, and that he would not object because he did not want to cause stress or upset for the children. This photograph does not sway the balance in favour of the Applicant’s position respecting the status of the parties’ relationship during this time frame. In fact, if the parties had continued to be in a conjugal relationship during this period, I would have expected to hear evidence and/or obtain photographs of many other activities which they and the children engaged in together throughout the spring and summer of 2016.

[105] The Applicant further testified that the Respondent celebrated Eid with her and the children in September 2016. In support of this assertion, she simply adduced as evidence two photographs of her with each child, and a picture of her and the Respondent outside of a Hamilton mosque which were taken on September 12, 2016. The Respondent had a much more detailed and credible description of the events of that day. He recalled that the Applicant had intended to take the children to the early prayers, but that she ended up taking them to the later service because they slept in. He testified that he simply picked the children up from the parking lot that day, that they took some family photographs, and that he then took Abdullah and Rand on his own for brunch in Burlington and then to London. His recollection was that the Applicant had brunch with some female friends from the mosque. I found the Respondent very credible in his description of these events, and I accept his evidence over the Applicant’s very cursory description of this day.

[106] The Applicant testified that she and the Respondent also went together with the children to a Cirque du Soleil performance for her fortieth birthday on October 9, 2016. She adduced as evidence a picture that had a date and time of October 8, 2016, 11:69 p.m., depicting the Respondent sleeping with Abdullah in a bed which she stated was at her home. She also adduced a photograph dated October 9, 2016, which she stated was a picture of her in front of the performance location, and another of the Respondent and Abdullah dated October 9, 2016 which she stated was taken during the performance. The Respondent denied having attended this performance with the Applicant and the children, and expressed his view that the photograph of him and Abdullah in a crowd was actually taken at an event in Barcelona. As a preliminary point, I note that the Applicant did not adduce evidence required to establish the authenticity and integrity of these photographs. In any event, I have concerns respecting the genuineness of the photographs based on the differences in their format. In particular, the first two photographs, showing Abdullah and the Respondent in bed and the Applicant outside of the venue, have one date of December 29, 2017 written in light font at the top left, and the dates of October 8^th and 9^th respectively centred below the first date. The Applicant explained that the December 29, 2017 date represents the date on which she transferred the photographs to her laptop. However, the third photograph does not show the date of December 29, 2017 as the others show. Instead, it shows the date of October 9, 2016 in the same type of font as the December 29, 2017 date on the other photographs, and it is the only photograph that has a notation below it stating “Cirque du Soleil.” The Applicant did not provide an explanation for these very clear differences in the formats of the photographs which she alleged were from the same family outing. In any event, even if I were satisfied that the parties attended this event with the children, this would not satisfy me that they remained together as a couple as of that date or that there was a reasonable prospect of resumed cohabitation, having regard for all of the other evidence that points to the contrary. In this regard, I did not hear or receive any evidence respecting any further specific joint family outings or gatherings with the children after October 9, 2016, despite the Applicant’s assertion that the parties remained together until September 2017. In addition, the Applicant testified that she and the children moved into the Madonna Drive townhouse on November 30, 2016. If the parties did in fact remain in a conjugal relationship as of that time, I would have expected to hear evidence about joint planning for the move and the Respondent assisting the family to move and settle into the new home. I did not hear any such evidence.

R. The Applicant’s Observorship in London in August 2017

[107] The Applicant testified that the parties’ relationship began to seriously unravel in mid- August, 2017. She indicated that she was in London at that time to complete the pathology observorship that she had arranged. On the Friday of that week, she decided to take Rand to the Respondent’s clinic office so that they could see his office and meet his staff. She asserted that the Respondent was not welcoming when they arrived, and that she became upset because none of the staff seemed to know about her and the Respondent seemed to be hiding her from the staff. She described the Respondent taking her and Rand downstairs through a side elevator and out a small door. She testified that this event made her very angry, and that she returned to the Respondent’s condominium afterwards and began to search his personal belongings. She further stated that she discovered at that point that the Respondent owned the farm property in his own name, and that he was earning much more income than she believed.

[108] The Respondent recalled the Applicant and Rand arriving at his clinic office without advance notice on the Friday in question during the Applicant’s observorship week. He stated that the Applicant had not seen his office before this point and had not met any of his staff. He recalled being perplexed about why the Applicant came. According to the Respondent, the Applicant became upset when he asked why she was there and he explained that he had patients waiting for him. He stated that the Applicant then began talking in a raised and angry voice about him not needing a woman in his life because he had a beautiful office, a beautiful administrative assistant, a good position, money and everything, whereas she had nothing. The Respondent acknowledged that he took the Applicant and Rand out through a staff elevator rather than through the clinic, because the Applicant was making a scene and he did not want to disturb the staff and patients. He indicated that he tried to calm the Applicant down, and gave her the key to his condominium so that she could go there and they could talk after he finished work. When he returned to his residence later that day, he discovered that someone had tried to print some of his billing documents and had moved two hard drives in his office. He realized at a later date that many other important documents were missing from his condominium, including the parties’ marriage certificates and previous divorce papers, his medical degree and board certificate documents and some materials relating to his criminal proceeding. The Respondent indicated that he later became aware that the Applicant had tried to print up his billing records, had taken photographs of some of his work documents and had taken the missing documents from his residence.

[109] The description which both parties gave of the events at the Respondent’s clinic in August 2017 support my conclusion that the parties remained separate and apart as of that time. It is clear from the evidence that the Applicant had never been at the Respondent’s place of work prior to that time, and that the clinic staff had no idea who she was. Furthermore, although the Applicant suggested that she stayed with the Respondent at his condominium that week, the Respondent gave detailed and credible evidence to the contrary. He recalled the Applicant going back and forth between Hamilton and London and about her talking about staying in a hotel one night. He also had a clear recollection of asking the Applicant to stay at the condominium until 8:00 or 9:00 p.m. one night because he had work commitments and Rand was experiencing a “female issue” that he wanted the Applicant to help her with. Again, I found the Respondent to be more credible than the Applicant on the question of whether the Applicant stayed at his residence during her observorship week.

S. The Photograph of the Applicant’s Jewellery

[110] The Applicant testified that she returned to London with the children for her last weekend visit with the Respondent during the weekend of September 8, 2017. She asserted that she knew after her observorship week in London that the Respondent would lie about them still being together, and that she wanted to obtain proof that the parties remained in a relationship. Accordingly, she alleged that she took a picture of her jewellery on the Respondent’s bedroom dresser in his condominium early in the morning on September 9, 2017. This picture was admitted as evidence, but the Respondent took issue with its genuineness. The Applicant noted that she regretted not having taken more photographs of her belongings in the condominium to prove her point that she had been cohabiting with the Respondent there. She stated that after the weekend of September 8, 2017, she did not stay with the Respondent again, but simply dropped the children off to visit with him. However, she claimed that the Respondent went to Hamilton a couple of times afterwards to visit the family. The Respondent adamantly denied that the Applicant stayed at his condominium during the weekend of September 8, 2017, and suggested that the Applicant took this photograph on another occasion when she was at his residence and altered the date. He readily acknowledged that the Applicant had stayed at his condominium on a few occasions to assist him with the children when he had unexpected work commitments.

[111] I am not satisfied that the Applicant spent the weekend at the Respondent’s home during the weekend of September 8, 2017, and I do not give any weight to the September 9, 2017 photograph in determining the parties’ separation/valuation date. Both parties acknowledged that they had a major dispute during the Applicant’s observorship week, and that the Applicant had rummaged through the Respondent’s personal affairs and taken important documents from his residence. There was no evidence adduced of any communications or meetings between the parties from mid-August until September 8, 2017 to discuss the fallout from this major event and to calm the waters between them. Moreover, the photograph of the Applicant’s jewellery appears to be contrived. If the Applicant did indeed go to London that weekend to obtain proof of her clear presence as a spouse in the condominium, the question arises as to why she only took one photograph to evidence her presence. It simply does not make sense that she would only take this one photograph. Taking into consideration all of the evidence, the Applicant’s story does not ring true. In all of the circumstances, I share the Respondent’s concern that the date of the photograph may have been altered, or that someone else took the photograph on behalf of the Applicant.

T. The Evidence of the Parties’ Friends and Acquaintances

[112] The parties each called friends as witnesses at trial to support their positions respecting the separation and valuation date in this matter. The Applicant called three witnesses who she met as a result of Abdullah’s sporting activities. Clara Sacchini was one of these witnesses. She and the Applicant met in 2013 through Abdullah’s water polo and soccer activities, and they continued to have contact with each other throughout 2017. Ms. Sacchini testified that she first met the Respondent at a water polo practice in approximately April 2016, and that the Applicant introduced him as her husband at that time. She met the Respondent on a second occasion at a water polo tournament in 2017, in the London area. She testified that on that occasion, she, her son, both of the parties and the children Abdullah and Rand all went for lunch together. She indicated that the Applicant did not discuss the nature of her relationship with the Respondent in detail, but that she stated on one occasion in 2016 that the Respondent was not coming to visit her for the weekend because she had her menstrual period and they could not have sexual intercourse. She also recalled the Applicant talking about the family trip to Lebanon, and telling her that “the four of them” stayed in a small apartment. In addition, she recalled the Applicant describing the family trip to Barcelona, and about spending some time together in London with mutual friends and their children. When considered along with all of the other evidence discussed above, none of this evidence alters my conclusion respecting the separation and valuation date in this matter. With respect to the Applicant introducing the Respondent as her husband, I note that she frequently described him as her husband throughout her testimony at trial as well, despite the fact that the parties were clearly separated by that time. In regard to the Applicant’s comment that the Respondent did not visit her because she had her menstrual period, I have concerns regarding the reliability of Ms. Sacchini’s testimony about the timing of the comment. My concern about the reliability of her recollection stems in part from her testimony that the family shared a small apartment during the trip to Lebanon, when in fact the parties had separate hotel rooms in Lebanon. They shared the apartment in Barcelona. Furthermore, Ms. Sacchini acknowledged that the Applicant did not really discuss the details of her relationship with the Respondent with her. I note that there is no evidence that the parties socialized with Ms. Sacchini and her family, apart from one luncheon during a water polo tournament in 2017. It is significant that she only ever met the Respondent on two occasions, both times at Abdullah’s sporting events.

[113] The Applicant also called Danka Skokovic-Gates as a witness. She and Ms. Skokovic-Gates became acquaintances through Abdullah’s water polo activities, commencing in 2015. Ms. Skokovic-Gates testified that Abdullah later advanced to a competitive team, and that she began to see the Applicant less after that time. She indicated that when her son and Abdullah were on the same team, she and the Applicant spent approximately two hours twice per week together in the stands, watching the children play water polo. Her understanding from her conversations with the Applicant was that the parties were married but living in separate cities due to work arrangements. She recalls meeting the Respondent on only one occasion, sometime in the winter or early spring of 2016, at the Jimmy Thompson pool during a water polo game. Her evidence was that the Applicant introduced the Respondent as her husband, and that the parties sat together in the stands during the game. She also recalled talking with the parties on that occasion about them possibly attending a water polo tournament in Montreal, but stated that Abdullah and the parties did not end up attending that tournament. When considered along with all of the evidence outlined above, the evidence of Ms. Skokovic-Gates does not alter my conclusion that the parties remained separate and apart with no possibility of resumed cohabitation after March 7, 2014. Again, the fact that the Applicant referred to the Respondent as her husband is not in my view material, since she referred to him in this manner throughout the trial. The fact that Ms. Skokovic-Gates only saw the Respondent on one occasion, and that the parties never socialized with her and her family further support the Respondent’s version of the separation and valuation date.

[114] Ms. Lisa Mulholland also testified on behalf of the Applicant. She and the Applicant met through Abdullah’s water polo activities as well. They became acquainted in late 2015 or early 2016 and saw each other frequently at practices and events until their sons began to play on different teams in 2018. Ms. Mulholland testified that she had many occasions to talk with the Applicant during the boys’ water polo activities, and that her impression was that the parties were married and remained in a relationship with each other. She recalls meeting the Respondent on approximately three occasions at water polo events, and the Applicant referring to him as her husband. She indicated that the parties sat together in the stands to watch Abdullah play on those occasions. Her impression was that the parties acted like a socially conservative married couple in public. This evidence was also in my view insufficient to alter my conclusions respecting the status of the parties’ relationship after March 2014. When considered in conjunction with all of the other evidence, I find that the Respondent attended the water polo events in question to support Abdullah in his activities, and that his actions in sitting with the Respondent were simply reflective of his effort to maintain a friendly post-separation relationship for the benefit of the children.

[115] Finally, the Applicant called a former neighbour, Ms. Nora Pulcins, as a witness. Ms. Pulcins testified that she lived next door to the Applicant when she resided on Parkside Drive in Hamilton, from approximately June 2015 until late 2016. She recalled the Applicant introducing the Respondent as her husband on one occasion, and seeing the Respondent coming to the home approximately every second weekend. In examination in chief, she indicated that her impression was that the Respondent would spend the weekend at the Applicant’s home when he came. However, on cross examination by Ms. Hughes, she acknowledged that although she had seen the Respondent coming and going from the Applicant’s home, she did not watch carefully as to when he came or left, and did not really “keep track of all that.” Again, this evidence, when considered in conjunction with all of the other evidence discussed above, does not alter my conclusion respecting the separation/valuation date. The Respondent acknowledged that he spent time with the children in the Applicant’s home on several occasions when the Applicant required assistance. Furthermore, Ms. Pulcins only spoke to the Respondent on one occasion, and she did not describe any personal interactions between the parties that would be indicative of an ongoing conjugal connection.

[116] In considering the weight to be given to the Applicant’s four witnesses discussed above, I have also considered that of the friends who the Respondent called as witnesses, namely Mohamed Abdulrehman and Mahzan Dalawar. The Respondent met these two men at a café in London through a mutual friend, Dr. Hesham, in approximately August or September 2013, and he developed a very close friendship with them over time. The closeness of his relationship with these two witnesses contrasts with the Applicant’s connections with the witnesses discussed above, which I find were more in the nature of acquaintances. Mr. Abdulrehman and Mr. Dalawar both spent significant amounts of time with the Respondent, and appeared to have a clear appreciation of the details of the Respondent’s life and the nature of the parties’ relationship during the relevant time frame. I found them both to be very credible and reliable, and their evidence strongly supported the Respondent’s position respecting the separation/valuation date in this case.

[117] Dealing first with Mr. Abdulrehman’s evidence, I found him to be a very credible and reliable witness. He testified that he and the Respondent met at the café in London in approximately 2013, and that they have been close friends since that time. He indicated that he sees the Respondent at least 5 times a week and often daily. In addition, he stated that he, the Respondent and some other friends have gathered as a group on average once or twice a month when other family members have joined them, including wives, girlfriends and children, but that the Applicant has never been present for any of those social gatherings. He testified that he has often been to the Respondent’s home in London with his children, and that he has never seen the Applicant there. Furthermore, he has never seen any evidence suggesting that the Applicant cohabited with the Respondent in his home in London. It was his clear impression that the Respondent has been separated, and he indicated that he has tried to “set the Respondent up” with other women because he always “went single” to their social events. He recalled the Respondent talking about having his children for weekends at his home in London, but had no recollection of him mentioning the Applicant being present for those visits. In addition, he was aware that the Respondent often went to Hamilton to see Abdullah and Rand, but his impression was that the Respondent did not usually stay overnight in Hamilton on those occasions. He recalled the Respondent talking about the trips to Lebanon and Barcelona, but it was his impression from his discussions with the Respondent that those were family trips for the benefit of the children, rather than trips which the parties took as a couple. Finally, Mr. Abdulrehman was the guarantor for the Respondent’s passport application dated August 23, 2015, on which the Respondent noted that he was separated. Mr. Abdulrehman testified that he was confident in declaring the information on the application to be true when he signed it as a guarantor.

[118] Mahzan Dalawar testified that he met the Respondent sometime in 2013, and that he and the Respondent have socialized together regularly since that time. I found him to be very credible and reliable as well. Both he and Mr. Abdulrehman indicated that there were approximately 4 or 5 men who socialized together as a group, including the Respondent. He indicated that in addition to gathering together at the café, this group of men often socialized at each other’s homes, including on special occasions such as birthdays, New Year’s and other holidays. He confirmed Mr. Abdulrehman’s evidence that these gatherings at each other’s homes would often include wives or girlfriends and children, but that the Applicant has never been present for any of the gatherings. Mr. Dalawar testified that he had only seen the Applicant on one occasion with the Respondent at a mall in Masonville, near London. He recalled the Respondent going to see his children in Hamilton, but stated that the Respondent would usually return to London on the same day. He indicated that over time, it became his clear impression that the Applicant and Respondent were separated. He recalled the Respondent talking about trips with his family to Lebanon and Barcelona, but did not provide any more specifics about the discussion about those trips. He had no recollection of the Respondent talking about a family trip to Niagara Falls during the Christmas period in 2014, the Respondent attending a Cirque du Soleil event with his family or celebrating Eid with his family in September 2016 or the Respondent talking about the Applicant attending his citizenship ceremony with the children. His understanding was that the Respondent was paying the Applicant support from 2015 onward.

[119] The Respondent described his relationships with Mr. Abdulrehman and Mr. Dalawar as being very close-knit. He indicated that these friendships became even closer and more important to him after he was charged with assault in March 2014, since he had no contact with his family after that time and found himself alone in London. He described socializing with them and other men in this group in London, and becoming very close with their wives, girlfriends and children. He confirmed that he never brought the Applicant to the social gatherings involving partners and children, and explained that he did not socialize with these friends when Abdullah and Rand were with him because he preferred to spend quality time just with his children when they came to visit him in London. The evidence of the Respondent, in conjunction with that of Mr. Abdulrehman and Mr. Dalawar, strongly supported the Respondent’s position respecting the separation/valuation date. The general picture that emerges from the evidence of both parties’ friends who were called as witnesses was that the parties did not socialize as a couple with other couples in either Hamilton or London after March 2014. By contrast, the Respondent’s uncontroverted evidence was that the parties engaged in activities with common friends in the Hamilton area before he was charged with assault in March 2014. In addition, apart from the wedding which both parties attended in August 2014, there is no evidence of them going on any outings with each other, without the children, after March 7, 2014.

U. Household Routines, Signs of Affection and Sexual Intimacy

[120] I note that there was also no evidence adduced of the parties sharing general household routines and tasks with each other on a regular basis in their respective homes after March 7, 2014. Significantly, although both parties changed their residences after that time, neither testified about helping each other with their moves or setting up the new homes.

[121] In addition, although the parties lived in separate cities, there was no evidence of them regularly exchanging intimate and loving messages with each other after March 7, 2014. Furthermore, I find that they did not exchange any gifts or other tokens of affection with each other.

[122] As I have indicated, the evidence of the parties differed as to whether they were sexually intimate after March 7, 2014, with the Applicant alleging that they were but the Respondent adamantly denying that there was any intimacy between them. Based on my overall assessment of the parties’ credibility and all of the other evidence discussed above, I prefer the Respondent’s evidence over that of the Applicant. In any event, even if there were some incidents of intimacy, this would not be determinative of the issues in this case.

V. The Children’s Visits in London

[123] Counsel for the Applicant suggested to the Respondent in cross examination that prior to October, 2017, the Applicant always spent the weekend at the Respondent’s residence when she brought the children to see the Respondent. He further suggested that in October, 2017, the Applicant objected to the Respondent having full weekend access alone with the children in London, since she alleged that the Respondent had never had the children on his own for that amount of time. The Respondent gave detailed and credible evidence which dispelled these propositions. He recalled that after the criminal charge was withdrawn in July 2014, he struggled with how to explain to Abdullah and Rand that their contact with him would be changing. He stated that initially, he had visits alone with the children in Hamilton, and the Applicant would tell the children that she could not join them because she was busy or not feeling well. He explained that he began to introduce the idea of him visiting alone with the children gradually, and described taking his first full day trip with them alone to Niagara Falls in August 2014. He testified that by early to mid-2015, he typically had the children with him in London every second weekend, but that the parties were flexible in making access arrangements depending on the children’s activities and the Applicant’s plans. He described that at times, the Applicant would connect access with support issues, such that he would have difficulty seeing the children if the Applicant was not happy with the support arrangements. However, he conceded that overall, things went well and he was happy with the visitation that he had with Abdullah and Rand. He also recalled that at one point, Rand was resistant to visiting in London regularly because she was older and wanted to spend more time in Hamilton with her mother and friends. As I have already discussed, the Respondent had a detailed recollection of talking about the need for flexibility about his access with Rand during the third session with Mr. Staudinger in 2016, and in particular, the need for him to understand Rand’s wish to spend more time in Hamilton with her mother. I found the Respondent to be extremely credible in his testimony on these issues, and his description of the nature of his contact with the children after July 2014 further supports his position respecting the separation/valuation date.

II. SUMMARY OF CONCLUSIONS

[124] Based on the findings outlined above, I conclude that the parties began to live separate and apart on March 7, 2014. They did not resume cohabitation with reconciliation as the primary purpose at any time after March 7, 2014, and they never in fact reconciled after that point. I also find that there was no reasonable prospect that the parties would resume cohabitation after March 7, 2014. Accordingly, I have determined that March 7, 2014 is the separation date for the purposes of divorce entitlement and spousal support as well as the valuation date for the purposes of Part I of the Family Law Act. By way of general closing summary, my decision is based on the following broad conclusions:

1. The Respondent expressed a clear intention to be separate and apart at the end of the domestic dispute that occurred on March 7, 2014. He has maintained this clear intention since that time.

2. The Applicant also had a clear intention to separate from the Respondent after the domestic incident on March 7, 2014, and she clearly articulated that intention to the Respondent on July 17, 2014. Although she expressed a wish to explore reconciliation in August 2015 and reached out to Mr. Staudinger for counselling services at that time, the Respondent clearly indicated that he was not interested in reconciling.

3. The Respondent did not engage in counselling with Mr. Staudinger with the goal of exploring a reconciliation with the Applicant. Rather, he believed that the purpose of the sessions was to support the Applicant in dealing with the challenges that she was experiencing and to work on issues relating to communication and parenting so that the parties could co-parent the children in an amicable and effective manner.

4. Although the parties each spent some overnights at each other’s residences after July 2014, those overnight stays were not conjugal in nature and occurred for practical reasons related to the parties’ efforts to co-parent the children in an amicable manner post-separation.

5. The parties did not have special romantic outings with each other after March 7, 2014, and did not socialize as a couple with other couples.

6. Although the parties took the children on two international trips together in December 2015 and March 2016, those trips were for the benefit of the children and did not evidence a reconciliation between them or a reasonable prospect that they would resume cohabitation.

7. The parties did not share or support each other with respect to general household routines and chores after March 7, 2014.

8. The parties did not exchange intimate communications, gifts or other tokens of affection with each other after March 7, 2014.

9. Both parties consistently identified themselves as separated on important government and personal documents after March 7, 2014.

10. The parties generally conducted their financial affairs as separated individuals after March 7, 2014, including the purchase of properties in their sole names.

11. The manner in which the Respondent supported the family changed after March 7, 2014. Commencing in July 2014, he began to make monthly payments to the Applicant in the nature of support. The Applicant consulted with Mr. Sherman