Court File and Parties

COURT FILE NO.: FS-22-30294 DATE: 20240315 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Yemad Naura Hamdan, Applicant AND: Nancy A. Hamdan, Respondent

BEFORE: Paul B. Schabas J.

COUNSEL: A. Rubin and J. Passeri, for the Applicant Nancy A. Salundaguit, self-represented

HEARD: February 26 – 28, 2024

Reasons for Judgment

Overview

[1] In June 2022, the Applicant, Yemad Hamdan, commenced this proceeding seeking a simple divorce from his wife, the Respondent, Nancy Hamdan (or Nancy Salundaguit). The Application stated that the parties married on December 16, 2008 and separated on January 6, 2016. They have one child, born on July 18, 2003.

[2] In her Answer, filed on January 20, 2023, the Respondent disputed the date of separation, asserting that it was August 1, 2021. She claimed spousal support, equalization of net family property and an order for the sale of the matrimonial home. The Respondent also sought orders setting aside a Prenuptial Agreement dated September 12, 2008 and a Separation Agreement dated March 15, 2016.

[3] At the outset of this trial, I granted a request to bifurcate the proceeding so that the issues of date of separation and the validity of the agreements could be determined first, leaving the equalization and property issues to a later date, if necessary. The claim for spousal support by the Respondent was no longer asserted.

[4] For the reasons that follow, I find the date of separation to be January 6, 2016. As a result, the remaining property claims by the Respondent are barred by s. 7(3) of the Family Law Act, RSO 1990, c. F.3, as am., as those claims were made more than six years following the date of separation. In addition, although not necessary for my decision, the Respondent has failed to persuade me that the Prenuptial Agreement or the Separation Agreement should be set aside.

Background

The Philippines: Prenuptial Agreement

[5] The Applicant was born in 1946. In 2000 he lived in Toronto. He was in the jewellery business. He travelled regularly on business to the Far East, including to the Philippines. On one of his trips to Manila, he met the Respondent, who was born in 1979. She worked in a department store. They developed a romantic relationship and in 2003 their child, Ali, was born in the Philippines. The Applicant provided financial support to the Respondent and bought a home for her and the child in Cebu. He would visit from time to time.

[6] In 2008, the Applicant sought and obtained a Court order in the Philippines granting him custody of the child, as he wished to bring the child to Canada. The Respondent consented to the custody order. The Court order granting custody, dated August 29, 2008, referred to evidence from both parties that the need to support the Respondent’s family was an obstacle to the parties marrying and that the Respondent could not leave her family.

[7] However, the Applicant did not take the child to Canada in 2008. Instead, a short time after the custody order was made, on September 12, 2008, the parties signed a Prenuptial Agreement which had been prepared by a lawyer for the Applicant in Toronto.

[8] The Prenuptial Agreement contemplated the parties marrying later that year, and that the Respondent would move to Canada with Ali and live at the home owned by the Applicant at 109 Stephen Drive, Unit 2, in Toronto. The essence of the Agreement, which was governed by the law of Ontario, was that the parties would be financially independent of one another and not make any claim for property or spousal support in the event of a breakdown of the marriage.

[9] The Agreement was signed by both parties in Cebu. A certificate of independent legal advice was signed and dated the same day by an attorney-at-law of the Supreme Court of the Philippines attesting that he had provided independent legal advice to the Respondent.

[10] The Applicant testified that the lawyer in the Philippines was selected by the Respondent’s father and that the parties and the Respondent’s father went to the lawyer together where the lawyer spent about an hour and a half reviewing the Agreement with the Respondent, speaking in both English and Tagalog. The Applicant paid the legal fees.

[11] The Respondent testified that the Applicant chose the lawyer and that no one gave her any advice about the Prenuptial Agreement, and she simply had to sign it if she was to move to Canada. She said she didn’t know anything about it. The Respondent confirmed that she spoke English and could have read the Agreement but chose not to do so. She also agreed she could have sought legal advice elsewhere. When confronted in cross-examination that she was essentially calling the lawyer who had certified the independent legal advice a liar, she hesitated, simply saying that she was there and she signed it.

[12] The parties married on December 16, 2008.

Canada: the Separation Agreement and following

[13] The Respondent and the child moved to Toronto in 2010 and resided with the Applicant at 109 Stephen Drive in Toronto.

[14] In or about 2014, the Applicant was diagnosed with prostate cancer and was required to have surgery. This affected the parties’ sex life and led to a lack of intimacy. According to the Applicant, intimacy stopped at that time and, increasingly, the Respondent slept apart from him, in another room (there were three bedrooms) or on a mattress on the living room floor. This is disputed by the Respondent who says that the parties remained intimate until 2021.

[15] The Applicant testified that on January 6, 2016, he found text messages on the Respondent’s phone indicating that she was in a relationship with another man. He confronted her, they had a bad argument, and agreed to separate.

[16] On March 14 and 15, 2016, the Applicant and Respondent signed a Separation Agreement which had been drafted by a lawyer for the Respondent, Solmaz Separy. Both parties had their signatures witnessed by lawyers. Ms. Separy certified that she had provided independent legal advice to the Respondent who confirmed that she understood the nature and effect of the Agreement and that she entered into it without any compulsion or influence by the Applicant. The Applicant did not obtain formal independent legal advice.

[17] The Separation Agreement stated that the parties separated on June 6, 2016. It provided that the parties continued to live at the same address but that the Respondent would move into Unit 1 of 109 Stephen Drive - the apartment below Unit 2, also owned by the Applicant - and that Ali would live primarily with his mother but that the parties would have “shared/joint custody.” The Applicant testified that he was concerned that the Respondent would otherwise move in with a girlfriend with the child and he did not want the child living in that situation and be away from him.

[18] The Applicant testified that they gave the tenants in Unit 1, a family, notice to end the tenancy and did not get a response.

[19] On March 22, 2016, one of the tenants, Kevin Hagyard, violently assaulted the Applicant with a baseball bat. Mr. Hagyard was arrested and the Applicant was hospitalized for a period of time. The Respondent said that it was after this assault that the Applicant suggested they sign a Separation Agreement that could be used to evict Mr. Hagyard’s family from the unit. However, this cannot be correct. The assault took place on March 22, 2016. The Separation Agreement was signed on March 14 and 15, 2016. Further, after obtaining approval from Legal Aid, the Respondent retained Ms. Separy in February 2016, well before the assault, to provide up to ten hours of legal assistance for the Separation Agreement.

[20] After my ruling that privilege had been waived by the Respondent earlier in this proceeding when she was still represented by counsel, Ms. Separy testified at the trial.

[21] Ms. Separy confirmed that she met with the Respondent and took instructions from her on February 19, 2016 to prepare an Agreement to address what she understood to be an actual separation. As the Respondent admitted, this included the instruction that the date of separation was January 6, 2016.

[22] The Respondent made Ms. Separy aware of the Prenuptial Agreement which is why the Separation Agreement did not address property. Ms. Separy confirmed that the Separation Agreement was reviewed with the Respondent, page by page, in person before she signed it. Although the Respondent initially denied that she had initialed each page, she agreed in cross-examination that she had done so.

[23] The Respondent was given the Separation Agreement to take to the Applicant husband to sign, and she was asked to return it to Ms. Separy. Despite several requests to the Respondent, the executed Separation Agreement was never returned to Ms. Separy. When asked about whether Ms. Separy had made several requests for a signed copy of the Agreement, the Respondent simply said she did not know. On the other hand, the Respondent testified that she called Ms. Separy or “Legal Aid” – she couldn’t remember which but seemed to equate Ms. Separy with Legal Aid – to say that she had reconciled with her husband. Ms. Separy’s notes do not indicate such a phone call was received, and she was not asked about this at trial.

[24] Ms. Separy said she was not told anything about a landlord-tenant matter during the course of the retainer. Only later, on June 29, 2016, as Ms. Separy’s notes disclose, did the Respondent call Ms. Separy’s office asking if she could work on a landlord-tenant dispute. The Respondent was told that Ms Separy did not take on such cases. Ms. Separy closed her file on September 9, 2016.

[25] When cross-examined on the Separation Agreement, the Respondent gave the impression that she did not know what was going on and said she just told Ms. Separy what the Applicant had told her to say. She said she did not remember if she told Ms. Separy about the Prenuptial Agreement, but when pressed said she told her about it and that she did not know much about it. She then said she told Ms. Separy not to address property but could not say why she told her that. Although the Respondent had earlier in the trial suggested that the Separation Agreement was not “registered” because Ms. Separy did not have a signed copy of it, she testified that she did not understand that she should have provided Ms. Separy with a copy and did not do so.

[26] In her Answer, the Respondent pleaded that the parties “rescinded” the Separation Agreement once the tenant was evicted. However, she could not say how it was to be rescinded and agreed it was never taken back or “rescinded.”

[27] The Separation Agreement stated that the Applicant would pay $880 per month to the Respondent for child support, “commensurate with an income of $100,000/per year under the Child Support Guidelines.” The Applicant says he paid the Respondent $900 per month in cash until 2019 when he stopped because, he said, the Respondent was sending the money to her mother in the Philippines. The Respondent cross-examined the Applicant on this, suggesting that he did not pay her any child support, which the Applicant disputed.

[28] The Applicant applied to the Landlord and Tenant Board (“LTB”) for an order to terminate the tenancy and evict Mr. Hagyard and his family on the ground that the unit was required for occupation by the Respondent and her son. The LTB held a hearing on September 14, 2016, at which the Applicant and Respondent both testified, as did Mr. Hagyard’s spouse, Pranvera Hagyard.

[29] The LTB decision discloses that evidence of the relationship of the parties and their separation, including the Separation Agreement, was put forward at the hearing. At paragraph 16 of the LTB decision, issued on September 22, 2016, the Board Member concluded that the Applicant had met his burden of establishing that he required the unit for occupation by his wife and son, stating:

(a) I was satisfied after hearing the testimony of the Landlord and his spouse that their marriage was at an end and that their separation was genuine. Their testimony, especially that of the spouse who was excluded from the hearing room while the Landlord testified, was consistent as to their frustrations with each other and the reasons they were separating;

(b) I was satisfied that they were currently living separate and apart in the unit above the rental unit for the time being, something that often occurs until separation terms are arrived at;

(c) I was satisfied that the arrangement the Landlord and the spouse contemplated, where the spouse and child would live below the Landlord's unit, was not suspicious and is, in fact, ideal considering the best interest of the child. It would allow them to live separate and apart, yet provide for convenient access to the child by the Landlord;

(d) I was satisfied that, apart from the question of the Landlord's income, there were no material terms of the separation agreement which should arouse suspicion. It was a standard form agreement, particularly as to reconciliation which is a term commonly inserted into such agreements. There was no indication before me that the parties had added the clause so that they could simply reconcile after evicting the Tenants; and

(e) I am satisfied it is not unusual for separated parties to remain separated for years or forever without obtaining a divorce.

[30] The Respondent was cross-examined about the hearing before the LTB. Although she said she recalled attending at the LTB with her husband, as she said he told her not to sit beside him, she initially said she did not remember testifying. When read passages from paragraphs (a) and (c) of the LTB decision, quoted above, the Respondent said she had no recollection of this, or of testifying.

[31] Despite the eviction of the tenants, the Respondent did not move into Unit 1. Both parties testified that she was frightened of doing so because of her fear of Mr. Hagyard who, apparently, had broken into the unit and been seen on video after the eviction when it was empty. The Respondent remained in Unit 2 with her son and the Applicant.

[32] In early 2018, the Applicant sold the property on Stephen Drive and purchased a larger home at 930 Streamway Drive in Mississauga. The parties and their son Ali all moved to the new house, although the Applicant and Ali said the Respondent moved in separately, two days after them. This was a four-bedroom home and, according to the Applicant, the Respondent slept in her own bedroom.

[33] The Respondent, on the other hand, testified that the parties continued to sleep together and were intimate from 2016 to 2021, including after they moved to 930 Streamway Drive. She acknowledged that she and the Applicant argued, as he accused her of having affairs.

[34] In 2017, the Respondent began working at a packaging company. She said that her husband drove her to work and back until 2019 when she obtained her driver’s licence. This was confirmed by a co-worker of the Respondent, Karrie Sutherland, who testified for the Respondent at trial, who said she was given some rides by the Applicant in 2019. The Respondent also said that her husband and son were listed as family for purposes of getting extended health insurance through her employment.

[35] The Respondent said that her husband accused her of having an affair when she had to stay late after her shift to fix errors that had occurred. At one point in her cross-examination, she said that this was the cause of the breakdown of the marriage. However, this would have occurred well before August 2021 when, she said, they had another big argument and she then moved into the guest room, which is the Respondent’s asserted date of separation.

[36] In April 2022, the Respondent went to the Philippines to sell the house that the Applicant had bought years earlier. It was owned by the Respondent, but they split the proceeds. According to the Applicant, the Respondent called him from the Philippines to say she wanted a divorce and one half of his assets. The Applicant filed this Application in June 2022.

[37] Ali testified that the relationship between his parents was never good, that they were “extremely argumentative” and that the fighting got worse over time. He said that when they argued, his parents would sleep in separate bedrooms and that his mother would sleep on a mattress on the living room floor. Ali said this became a permanent arrangement after the Applicant’s prostate surgery in late 2014 or early 2015.

[38] Ali also recalled coming home from the park one day in late 2015 or early 2016 and being told by both his parents that they were separating and that he and his mother would be moving downstairs. He recalls his father taking him to the unit downstairs to select a bedroom and to choose a paint colour. Ali confirmed that they did not move in because of safety concerns about living in the downstairs unit due to the fear of Mr. Hagyard.

[39] Ali said that the parties barely spoke to one another in 2016 and 2017 and that things were very hostile. When they moved and he questioned his father about why his mother was also moving to the new home, he was told that it was for his benefit to maintain his relationship with his mother.

[40] Ali said that the parties lived separate lives while still at Stephen Drive. He said his mother stopped cooking for the family and his father taught him to cook. At the new house, he said she did not cook at all and they ate at separate times. Ali said that things were relatively quiet until around the time of his high school graduation in 2021, when they became “more aggressive”, and that things got much worse after the Applicant filed the Application for a divorce, which made his mother very angry.

[41] The Respondent asserted that Ali was lying when he said they had not had meals together and that she slept separately from the Applicant. In 2023, the Respondent moved in with a neighbour.

Discussion and findings

Date of Separation

[42] Determining the date of separation involves an examination of when the parties began, deliberately, to live separately in the sense that they led largely separate lives and no longer shared experiences as they had previously.

[43] There can be many factors to consider in making a determination of when a couple separates, which will vary from case to case, as will the weight to be given to various factors. No one consideration is necessarily determinative, as every relationship is unique. A couple can continue to live in the same residence but be separated. The reason why they continue to share a home may be informative. An absence of sexual relations and sleeping apart is an important but not always determinative factor. Changes in their daily activities and an absence of love, affection, and support and that the couple does not collaborate on activities – routine or otherwise - is also significant. An agreement to separate is strong evidence, but the intent of the agreement must be considered. A separation can also involve unilateral action by one spouse; separation, unlike marriage, does not need to be agreed to by both parties: see Kinsella v. Mills, 2020 ONSC 4785 at paras. 117-118.

[44] In this case the parties have given evidence contradicting one another on many issues. This requires me to assess the reliability and credibility of their testimony. Considerations in this exercise include whether a witness’s evidence is consistent – internally and with other evidence, including documentary evidence. Does the evidence make sense; is it logical? Is it confirmed or contradicted by other evidence? Does the witness have a reason to lie? How good is the witness’s memory? Recalling events a long time ago is often difficult – sometimes witnesses remember too well or are unreasonably selective in what they recall. Did a witness have the ability to observe what they say they saw? Although the demeanour of a witness is not to be given undue weight, whether the witness testified in a candid and straightforward manner or was evasive, hesitant or biased should be considered.

[45] Having heard the evidence and considered the documentary record, I prefer the evidence of the Applicant over that of the Respondent. The Applicant’s evidence about the parties’ relationship and their separation was provided in a relatively straightforward manner. It was consistent with the evidence from their son, Ali, and was consistent with contemporaneous documents.

[46] In contrast, the Respondent’s evidence was inconsistent with the documentary evidence, her recollection of events was selective and she was frequently evasive in her answers to straightforward questions.

[47] The Respondent’s assertion that the Separation Agreement was a ruse to evict the tenant was not compelling or reliable. She testified that the idea came up after the Applicant was assaulted, but that is inconsistent with the facts, as the Separation Agreement was drafted and executed before the assault took place. Indeed, the Respondent met with Ms. Separy in February 2016, not long after the January 6, 2016 date of separation she confirmed should be in the Agreement.

[48] Ali’s evidence of being told by his parents around that time that they were separating and that he would be moving to the other unit with his mother is consistent with the Applicant’s evidence, and the Separation Agreement. Contrary to the Respondent’s evidence, Ali testified that his parents no longer slept together by 2016 and that after that time they cooked and ate separately as well.

[49] I appreciate that Ali appears to be estranged from his mother and that he is, as he said, very grateful to his father for bringing him to Canada and raising him here, which may suggest bias. However, his evidence was given in a straightforward and candid manner, despite the undoubted emotion of the event, including being cross-examined by his mother. His evidence was consistent and made sense.

[50] The Landlord and Tenant Board also made a finding, based on the testimony of both parties, but “especially” the evidence of the Respondent who, the Board noted, “was excluded from the hearing room while the Landlord [the Applicant] testified”, and that their evidence “was consistent as to their frustrations with each other and the reasons they were separating.” The Respondent’s professed lack of recollection of testifying at the LTB hearing is difficult to accept when she is asserting that she, and by implication the Applicant, deliberately lied to the LTB to cause the eviction of the tenant.

[51] The Respondent could not explain how the Separation Agreement was to be rescinded. Her assertion that she called Ms. Separy’s office to say that they had reconciled was not supported by Ms. Separy’s evidence – which was that based on her meetings with the Respondent, the Separation Agreement was legitimate and not made for any ulterior purpose. Again, the Respondent appeared to have a poor recollection of her discussions with Ms. Separy, but she was able to provide quite a bit of detailed information to her at the time, including advising her of the existence of the Prenuptial Agreement. She eventually agreed that she never told Ms. Separy it was not a real separation. She could not explain why the Agreement provided for child support if it was not a real agreement, and even denied initialling each page until pressed on cross-examination. The Respondent also denied that Ms. Separy had asked her repeatedly for the executed Agreement, despite the documentary evidence and testimony from Ms. Separy that this occurred.

[52] Although the Respondent did not end up moving downstairs into the vacated unit, all three members of the family – the Applicant, the Respondent, and Ali – testified that this was due to concerns about safety arising from fear of Kevin Hagyard. Not long after, they moved to the new house in 2018, where the Respondent could continue to have a relationship with Ali, but the parties occupied separate bedrooms and led largely separate lives.

[53] The Respondent’s evidence about their continuing relationship following the Separation Agreement and that they only separated in 2021 is difficult to accept. She conceded that she and the Applicant argued frequently and did not have a good relationship. It is not clear what in particular would have led to a separation in 2021 as opposed to some other date such as when she said the Applicant got upset when she stayed at work late after a shift.

[54] The Respondent asserted that between 2016 and 2021, they went to Niagara Falls and to the casino near Orillia together, but none of this was put to the Applicant or to Ali; and they denied having travelled with her to Ottawa in 2017. No photographs or any other evidence whatsoever of them living as a family was presented by the Respondent. Although the Applicant drove the Respondent to and from work in 2017 and 2018, this stopped in 2019 when she obtained a driver’s licence. Even Karrie Sutherland, who confirmed that the Applicant drove the Respondent to work, could not go further than say she once visited their house, but her evidence did not support the conclusion that the couple were living in a communal, conjugal or cooperative way.

[55] In summary, the Applicant has satisfied me, on a balance of probabilities, that the date of separation is January 6, 2016 when he discovered text messages that caused him to conclude the Respondent was being unfaithful to him. This is supported by the contemporaneous evidence, including the evidence of Ali being told they were separating, Ali’s evidence of them living quite separately thereafter, the Separation Agreement itself and the evidence surrounding its drafting, including that of Ms. Separy, and the findings of the LTB. Although the parties continued to live under the same roof for several years after the Separation Agreement was executed, this was explained in the evidence and does not change the fact that their marriage was effectively over in 2016.

The Prenuptial and Separation Agreements

[56] My concerns about the credibility and reliability of the Respondent’s evidence support my conclusion that there are no grounds to set aside the Prenuptial and Separation Agreements. Here the onus is on the Respondent to satisfy me that the Agreements should be set aside, and she has failed to do so.

[57] The Respondent’s evidence is that she simply did what she was told in signing the Prenuptial Agreement, after being taken to a lawyer by the Applicant. However, when pressed, she agreed she could have read it, as she could speak and read English, and that she could have sought independent legal advice herself. This Agreement was signed not long after she and the Applicant had testified in a Philippine Court about the custody of Ali, and this Agreement reflected a change in what they had told the Court, as they decided to marry after all. This suggests there would have been serious discussions between the parties at the time about their relationship. Further, although the Respondent said she knew little about the Agreement, after initially saying she couldn’t remember if she told Ms. Separy about it in 2016, she agreed she at least mentioned it but claimed she did not know much about it and did not have legal advice. This is contradicted by Ms. Separy’s evidence that she was aware of the Prenuptial Agreement and its effect which explained why there was nothing about property in the Separation Agreement.

[58] The Respondent had many years to challenge the certificate of independent legal advice for the Prenuptial Agreement and took no steps to do so, including when she travelled to the Philippines in 2022, which is after both claimed dates of separation. Nor did she attempt to lead any evidence from any member of her family who could have supported her story or rebutted the evidence of the Applicant that the lawyer who gave the advice in Cebu was found by her father and that the lawyer spent an hour and a half reviewing it with the Respondent. Indeed, when pressed about the lawyer’s certificate of independent advice and whether she was saying his certificate is false, she hesitated.

[59] In short, there is no basis to conclude, as asserted by the Respondent, that the Prenuptial Agreement was not freely entered into following the receipt of legal advice or that the Respondent did not understand it.

[60] Similarly, the Respondent’s evidence that the Separation Agreement was created as ruse to evict the tenants is not credible. To the contrary, the evidence of the Applicant, Ali and Ms. Separy is that the parties did in fact separate on or about January 6, 2016 and freely entered into the Separation Agreement to reflect that situation.

Conclusion

[61] The Application for a simple divorce is granted. As the property claims in the Answer were asserted more than six years after the date of separation, they cannot be sustained. Further, and in any event, the Prenuptial and Separation Agreements are valid and enforceable to defeat the claims of the Respondent.

[62] In light of my conclusions, it is not necessary for the parties to attend before me on March 27, 2024 at 10AM. That court appearance is vacated.

[63] Should the Applicant wish to seek costs, he shall provide me with written submissions not exceeding three pages, double-spaced, not including attachments, within 21 days of the release of these Reasons. The Respondent shall then have 21 days to respond, in writing, with the same page limits.

Paul B. Schabas J. Date: March 15, 2024