Court File and Parties

Court File No.: FS-22-00030500-0000 Date: May 4, 2024 Ontario Superior Court of Justice

Between: Karen Nairi Kassabian, Applicant – and – Berge Marcarian, Respondent

Counsel: Jeff Rechtshaffen, jeff@torontofamilylaw.com Laura Paris, Laura.paris@shulman

Heard: February 26 and 27, 2024

Before: Des Rosiers J.

Reasons

[1] The parties were married on September 6, 1998. They have two children together, N. S. (19 years old) and J. (16 years old). Dr. Mercarian ("the Husband") is a physician and an E.N.T. specialist, and Dr. Kassabian ("the Wife") is a dentist.

[2] The sole issue to be determined is when the parties separated pursuant to s. 4(1) of the Family Law Act, R.S.O. 1990, c. F.3.

[3] The Husband alleges that the parties separated on December 10, 2014, while the Wife says that they separated on May 16, 2021. This six-and-a-half-year difference has major legal consequences as the Wife could be outside the limitation period of six years to claim an equalization of the net family properties if December 10, 2014, is the date of separation (s. 7(3) of the Family Law Act).

[4] The Family Law Act presumes that married couples form an economic unit and that the wealth they accumulate during marriage should be shared equally. Parties may opt out of this presumption of equal sharing through contract.

[5] Absent a contract or circumstances defined in subsection 5(6), it is presumed that parties will share equally. This presumption of equal sharing reflects the reality that married couples function as a unit while they are married. They help each other, support each other, and put the interests of the unit ahead of their own. This is what happened in the present marriage.

[6] Both parties demonstrated great commitment to the marriage. At the beginning of the marriage, the Wife left Canada and her close family to join the Husband in Florida. In 2009, the Husband agreed to return to Canada for the family's benefit.

[7] The marriage was very much focused on creating a family, having children, and building a comfortable and secure nest for the family. Both parties are hard-working and ambitious professionals. Professional success and economic security are important to them both.

[8] Their commitment to having children is clear. The parties lived through the emotional rollercoaster that comes from trying to conceive children and experiencing disappointments in doing so. They went through fertility evaluations and treatments. The first child, N.S., was conceived through artificial insemination, and the second, J., by in vitro fertilization.

[9] Once the children were born, they understandably became the focus of the relationship. Managing their day-to-day care and planning for the household while working and redoing her qualifications occupied much of the Wife's time in Florida.

[10] The Husband cares very much for the children as well and is an astute businessman who developed flourishing rental and professional businesses in Florida and in Canada.

[11] This was also a marriage of differences, with the Wife wanting to travel and experience the world and the Husband being more cautious about finances and prioritizing achieving financial security.

Legal Analysis

[12] The case law is abundant on the issue of the date of separation and how each marriage must be assessed on its own to determine whether one party had the specific intent to separate at a particular time, with no possibility of reconciliation. Subsection 4(1) of the Family Law Act defines the valuation date as "the date the spouses separate, and there is no reasonable prospect that they will resume cohabitation."

[13] The task is to determine, based on the evidence, when the parties or one party deliberately decided to end the relationship, not simply to move to a different phase of their relationship.

[14] At times, the separation may be inferred from deliberate actions, such as moving out, discussing a separation, and proceeding to take legal steps to terminate the relationship.

[15] Because the date of separation triggers the passage of time for the 6-year limitation period, the law of limitations must also be considered. A fundamental principle of the law of limitations is that time begins to run against a party when they have or should have acquired knowledge of the material facts that give rise to the action. In other words, the law generally requires that the party required to take action knows that they must act. Limitations law attempts to encourage parties to act without delay, but to do so, they must know that they must act. See Graeme Mew, Debra Rolph & Daniel Zacks, The Law of Limitations, 4th ed. (October 2023), at ch. 3.02, online: LexisNexis Canada.

[16] Family law cases have developed a series of factors to infer whether parties have deliberately ended their relationship even if they continued living in the same lodgings. They look at the ways in which the serious decision to end the relationship is communicated.

[17] In O’Brien v. O’Brien, 2013 ONSC 5750, McDermot J. said (at paras. 51 and 52):

… although a marriage may be bad, that does not necessarily mean that the parties have separated. To determine the date of separation or, in fact, whether a separation has occurred, involves an analysis of what might be found to be an event of separation, combined with how the parties subsequently lived their lives.

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

[18] The way parties live their lives will indicate whether one or both consider themselves to be living separate and apart. The case of Oswell v. Oswell (1990), 74 O.R. (2d) 15 (H.C.J.), defines the factors that a Court may consider when spouses who continue to occupy the same premises are living “separate and apart” and have demonstrated their intention to end the relationship.

[19] The factors include: (a) physical separation, often indicated by the spouses occupying separate bedrooms; (b) a withdrawal of one or both of the spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium; (c) the absence of sexual relations (which is not conclusive but a factor to be considered); (d) the absence of discussion of family problems and communication between the parties; (e) the absence of joint social activities; (f) the meal pattern; and (g) the performance of household tasks.

[20] Each marriage is different, and determining when a party has communicated their intentions to separate or when they act as though they are separate demands an understanding of what the marriage was all about.

[21] The inquiry must be responsive to the particular couple’s history as no one factor is completely determinative of the question: Kinsella v. Mills, 2020 ONSC 4785, 44 R.F.L. (8th) 1, at paras. 117-118; and Warren v. Warren, 2019 ONSC 1751, at para. 7.

The Evidence

[22] The Wife testified and was cross-examined. She also filed affidavits from friends and family who indicate that the Applicant and the Respondent appeared married at several events post-2014. The parties represented themselves as married to the Armenian community to which they both belong. The announcement of the separation to the Applicant's friends and family occurred post-2021.

[23] The Wife testified that she began considering separating in the fall of 2019. She hired a divorce coach to help her through the process. Because of COVID and her father’s health, she postponed the idea of separation until May 2021, when she informed the Husband of her decision on May 16, 2021. Three weeks later, she sent the Husband an email confirming her intent. He responded eight days later by expressing surprise and sadness. In his email, he does not mention that he considered that they had been separated for 6 years already.

[24] The Husband also testified. His evidence was that he and his Wife attended marriage counseling in 2013 and that the marriage counselor advised them that they were not doing well. Neither pursued what the marriage counselor suggested as “homework” to repair the relationship.

[25] He explained that upon the arrival of the master bedroom furnishing from Florida in December 2014, the Wife installed herself in the master bedroom, and he remained in another bedroom. Every morning, he would come into the master bedroom to shower in the master bathroom and get changed in the walk-in closet.

[26] His evidence was that except for a brief interlude during a trip to Italy in the summer of 2015, he and his wife were never really sexually intimate again after December 2014.

[27] In his evidence, he related a conversation from December 2014 where the Wife declared to him: “This is a loveless, sexless marriage; I am only staying because of the children."

[28] He explained that the many photos and attendances at social and family events after 2014 were part of his commitment to the children. In his view, he and his Wife continued to cooperate for the sake of the children but did not interact much otherwise. He also testified to the many trips that the Wife took after 2014 without him.

[29] The Husband asserts that the termination of the sexual intimacy marked the end of the “marital consortium”.

[30] The Wife's evidence does not challenge that sexual intimacy stopped after the trip to Italy. Still, she puts this transition in the marriage into a larger picture of continued holidaying together with the children, of her continuing to plan meals and attending social events together, and of continuing to declare themselves “married” for income tax purposes and for social purposes.

[31] The Respondent and the Applicant both identified themselves as "married" on their income tax returns. They did not opt for the “married but filing separately” option on their U.S. tax returns.

[32] There is no doubt that the Husband was hurt and humiliated by the lack of sexual intimacy, but he did not take any step to end the marriage. He did not stop wearing his wedding band or attending events with his Wife, particularly when the children, the family or the community were present. He continued to eat with her and the kids and continued to travel with her and the kids. He did not proceed to divide their assets nor seek legal advice as to how to do so. At times, and based on the evidence adduced, it looks like they shared good times with their children and family.

[33] The Wife's evidence is that she never stopped considering herself married and continued to cook meals for the family, having her extensive family, and, at times, the Husband's family over for meals.

[34] She certainly did not see herself as "separated". Indeed, she was struggling with the idea of divorcing for a variety of reasons, including social pressures and concerns for the children. She went and saw a divorce coach whose notes were produced in evidence, and these notes reveal unambiguously that she did not see herself as “separated”.

[35] After reviewing the evidence and listening to the parties' testimonies, I conclude that the date of separation is the one asserted by the Wife, namely, May 26, 2021.

[36] If, as the Husband alleges, the Wife had decided unambiguously to separate in December 2014, she did not take any step to separate and dissolve their economic union. Had she meant to separate at that time, I am convinced that she would have informed herself of the legal consequences of her decision. By all accounts, she is a well-organized and business-minded person who would have taken the steps necessary to proceed toward a separation agreement.

[37] I find that, like many couples, the parties were content to have a different marriage than the one that they had hoped for. Certainly, they were both hurt, and they pursued their own individual interests while sharing things that mattered to them: time with the children and with their extended families and their community.

[38] My finding is based on the accumulation of the small factors that often make a marriage, such as continuing to wear one’s wedding band, going to social events together, and vacationing with the kids together. This was not a marriage that fulfilled their expectations, but it was a marriage, nonetheless.

[39] I find, on a balance of probabilities, that the Wife did not intend to separate and end the marriage without any possibility of reconciliation in December 2014, and neither did the Husband.

[40] It is more likely that the Wife ended the marriage on May 16, 2021, when she clearly communicated her intention to do so. The date of separation is May 16, 2021.

[41] If parties seek costs and cannot agree, they may provide submissions no longer than 5 pages, with an attached bill of costs. The Applicant has 10 days to do so; thereafter, the Respondent also has 10 days to provide his submissions.

Des Rosiers J. Released: May 4, 2024