Court File and Parties

COURT FILE NO.: FC423/23 DATE: June 3, 2024

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

Veena Arthi Sivakumaran Applicant

Zachary Wilson for the applicant

• and -

Sivakumaran Suppiah Respondent

Matthew Gianotti for the respondent on a limited scope retainer

HEARD: February 16, 2024

KORPAN J.

Reasons for Judgment

[1] The issue at this focused hearing is determination of the valuation date for equalization of the parties’ net family property.

[2] The applicant wife is 50 and is an early childhood educator. The respondent husband is 56 and is a software developer.

[3] The parties were married in an arranged marriage in Sri Lanka on June 16, 1999.

[4] They have two children who are 21 and 19.

[5] The parties are residing separate and apart in the matrimonial home with the children.

[6] The wife's affidavits sworn on December 14, 2023 and January 31, 2024 are her evidence in chief. The wife filed affidavits sworn on December 14, 2023 by her aunt and her friend and an affidavit sworn on January 31, 2024 by her aunt.

[7] The husband’s affidavit sworn on January 15, 2024 is his evidence in chief. He filed an affidavit sworn by his mother on January 15, 2024.

[8] Both parties were cross-examined on their affidavits. Their witnesses were not cross-examined on their affidavits.

[9] A focused hearing is a trial. The parties must include only trial worthy evidence in their focused hearing affidavits: Children's Aid Society of Algoma v. L.M., 2021 ONCJ 679, at para. 10; Goldman v. Goldman, 2022 ONSC 4585, at para. 7.

[10] The affidavits filed by the parties contain hearsay evidence. I do not rely on the hearsay evidence contained in the affidavits for the truth of the statements made.

[11] The wife’s position is that the valuation date is September 19, 2022. The husband’s position is that it is more than eight years earlier on July 1, 2014.

[12] The valuation date has a significant impact on the equalization of the parties’ net family property. If the valuation date is after April 19, 2017, the wife’s claim for equalization will be statute barred by the six-year limitation period prescribed in s. 7(3)(b) of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”).

Legislation and Case Law

[13] The valuation date in this case is the date the spouses separate and there is no reasonable prospect that they will resume cohabitation as set out in s. 4(1) 1. of the FLA.

[14] Section 1(1) of the FLA defines “cohabit” as “to live together in a conjugal relationship, whether within or outside marriage”.

[15] In Al-Sajee v. Tawfic, 2019 ONSC 3857, Chappel J. said the following about determining the valuation date:

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 v. Newton, at para. 49; Tesfatsion v. Berhane, 2013 CarswellOnt 213 (S.C.J.), 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 v. Rosseter, 2013 CarswellOnt 2013 (S.C.J.), at para. 9; Tokaji v. Tokaji, 2016 ONSC 7993 (S.C.J.), 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 v. Strobele, 2005 CarswellOnt 9201 (S.C.J.), at para. 32). As Beckett J. stated in Torosantucci v. 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 v. O'Brien, 2013 ONSC 5750 (S.C.J.), 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 (Ont. 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 v. Czepa (1988), 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 (Ont. 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 (Ont. 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 v. Oswell, at para. 19).

[16] In McBennett v. Danis, 2021 ONSC 3610, at para. 54, Chappel J. set out factors for consideration when determining the date of separation:

Ascertaining when parties cohabited and when they began to live separate and apart for the purposes of divorce entitlement and spousal support requires a careful analysis of the unique realities of the parties' relationship, routines, social and other habits and practices and living arrangements over time. In deciding how much weight, if any, to give to any specific factors, the court must carefully assess whether there have been any real changes in regard to those factors since the parties were clearly together in a conjugal relationship. In addition, because of the particular dynamics of each relationship, no single consideration will be determinative of whether spouses are cohabiting or living separate and apart; a global analysis and weighing of all factors is required. Subject to these caveats, I concluded in Al-Sajee and Kinsella that the relevant principles and considerations that emerge from the caselaw include the following:

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 v. Oswell, 1990 CarswellOnt 278 (H.C.), aff'd (1992), , 12 O.R. (3d) 95 (C.A.); Greaves v. Greaves, 2004 CarswellOnt 2408 (S.C.J.)).
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 (Oswell, at para. 12; Greaves, at para. 34; Neufeld, trial decision, 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 for a period of time 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 lived 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).
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, support, and sexual relations typically involved in the marital relationship (Kungl v. Schiefer, 1960 CarswellOnt 72 (C.A.), at para. 11, varied 1962 CarswellOnt 59 (S.C.C.); 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), 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), at para. 43; Naegels v. Robillard, 2019 ONSC 2662 (S.C.J.), aff'd 2020 ONSC 3918 (Div. Ct.) trial decision, 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 the hearing (Oswell, at para. 18; Greaves, at para. 34; R.(T.) v. K.(A.), 2015 ONSC 7272 (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. Other relevant considerations in determining whether the spouses are living separate and apart include the following: a) 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), 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). b) 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, trial decision, at para. 75). c) 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). d) Whether there have been any changes in expectations regarding their accountability to each other for daily activities (Oswell, at para. 37). e) 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 v. 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; see also Daley v. Gowan, 2015 ONSC 6741 (S.C.J.), at para. 66). f) Whether the parties spent vacations together (Oswell, at para. 26; Rosseter, at para. 34; Henderson v. Casson, 2014 ONSC 720 (S.C.J); Neufeld, trial decision, at para. 75; Anthony, at para. 42). g) Attendances by both parties with their children at family events, activities and even family vacations are 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 (C.A.), at paras. 10-11; Neufeld, trial decision, at para. 75(j)). h) 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). i) Whether they have celebrated special occasions together (Oswell, at para. 37; Rosseter, at para. 29) j) Whether they have purchased gifts or exchanged other tokens of affection with each other (Oswell, at para. 29; Rosseter, at para. 29; Neufeld, trial decision, at para. 75). k) 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). l) 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). m) 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 claimed any benefits that are conditional on their relationship status are important considerations (Czepa v. Czepa (1988), 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). n) 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). o) 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 CarswellOnt 84 (S.C.J.); Rosseter, at para. 41; Tokaji, at para. 24; Anthony, at para. 42). p) Have the parties continued to share the use of assets? (Rosseter, at para. 43). q) The parties' behaviour towards each other in the presence of third parties (Rosseter, at para. 44). r) Whether the parties have taken legal steps to 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 decisive 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).

[17] The determination of the valuation date is objective, but fact driven. Every marriage is unique.

[18] Each party has the onus of establishing on a balance of probabilities the date of separation that they propose: Bouffard v. Bouffard, 2020 ONSC 3079, at para. 39.

Valuation Date

[19] On the totality of the evidence set out below, I conclude on a balance of probabilities that the parties separated with no reasonable prospect of a resumption of cohabitation on September 19, 2022 and that the valuation date for purposes of equalization of the parties’ net family properties is September 19, 2022.

[20] According to the husband, the parties separated on July 1, 2014 when the wife told him she no longer wanted him as her spouse or to make love to him. She behaved differently and showed anger toward him. He was upset and devastated. After this, he largely stopped communicating with her and she did not pay any attention to him. They just ignored each other and avoided intimacy. He continued to perform his regular activities as usual, dropping off the children, taking them to soccer and to piano lessons. He later learned that the wife did not have any feelings for him because she was engaged in an extramarital affair.

[21] According to the wife, she has no idea how the husband arrived at July 1, 2014 as the date of separation. She has never told him that she no longer wanted him as her spouse or to make love to him. They had arguments like all married couples. The husband’s claims that he stopped communicating with her, that she did not pay attention to him and that they ignored each other and avoided intimacy after July 1, 2014 are untrue. The parties communicated a lot, which explains how they were able, among other things to, plan and attend many events and family vacations. She has never engaged in an extramarital affair of any kind.

[22] According to the husband, the wife moved to a separate bedroom in 2015. He asked the wife in front of the children why she was creating unnecessary family issues and told her that if she was not telling the truth about her infidelity, he would be leaving the house. He did not leave because the children cried and hugged him and said not to leave them. Not long thereafter, the wife said that she wanted to talk to him, she came to his office and told him that she did not love him anymore and their husband-wife relationship was over. She said how happy she was in a separate room and that he should seek legal counsel to finalize the marriage. When the husband’s mother visited them in 2015, she had to stay in the son’s bedroom. When his mother asked him about this, he told her that the wife was occupying the guestroom and that they did not sleep together. The husband’s mother says in her affidavit that she visits the family every year, that when she visited in 2015 she stayed in her grandson’s bedroom, that the husband told her the wife was occupying the guestroom and that they no longer lived together.

[23] According to the wife, she met the husband near his office for lunch in 2015 to talk to him, to tell him that he needed to stop hurting her and to work on their marriage. She did not move to the spare bedroom until January 2017 after her mother returned to Sri Lanka in December 2016. She moved to the spare bedroom just to sleep because she was unhappy with the way the husband treated her and because he would not change. He was physically abusive and demeaning to her. He complained about her. She was never good enough. He laughed at her. Her clothes remained in the shared bedroom and she still went there. She and the husband stayed together in the house. They continued to do things together. They watched TV together. They still hugged each other for birthdays and anniversaries. She continued to take care of the household. She was unhappy but committed to the marriage. She has never told the husband that she did not love him, that their husband-wife relationship was over, that she was happy to be in a separate room or that he should seek legal counsel to finalize the marriage. The parties were not separated.

[24] The parties agree that they have not slept together or had sexual intercourse since the wife started sleeping in the spare bedroom.

[25] According to the husband, when the wife’s mother visited in 2016, he told her that the wife broke their relationship without any reason and that whenever he asked the wife why they were separated, she responded that they were not compatible. The wife deliberately did not participate in the prayer ceremony at their daughter’s coming of age ceremony in March 2017 to show everyone that they were not together. She stopped wearing her wedding rings long before 2022 because she knew they were separated.

[26] According to the wife, she did not learn until the morning of their daughter’s coming of age ceremony that the priest would be coming to bless their house before their daughter’s rituals. To her knowledge, a house blessing is not part of the coming of age ceremony and it came as a surprise to her. She was involved in all of the preparations to get their daughter ready for her 10:00 a.m. rituals and did not have time to be involved in the house blessing. She also did not want to do anything that might be considered inappropriate, so she took guidance from the priest that she could continue focusing on getting their daughter ready while he did the house blessing with the husband. When the husband says that she stopped wearing her wedding rings, he is referring to her engagement ring that she received when the parties became engaged on June 16, 1999. She did not wear her ring all the time. The parties are Hindu and do not have wedding rings that carry the same significance as they do in Christianity. Hindus place significance on the thali which is a gold chain worn around the wife’s neck during family functions, in the temple and on special occasions. Her wearing the thali is essentially the same as a Christian woman wearing a wedding ring in that it shows her to be married. She wore the thali at their daughter’s coming of age ceremony.

[27] The wife asked the husband for marriage counselling. Although the husband did not agree to marriage counselling, he agreed in cross-examination that the purpose of the marriage counselling would be to continue the marriage and that he held out hope that the marriage would continue. The husband did not want a divorce and did not seek a divorce to give the wife some more time. He continued to live under the same roof because he hoped that the marriage would work out and that the parties would carry on as a married couple.

[28] The husband contacted lawyers Refcio & Associates for a family law consultation in February 2020. On February 5, 2020, in response to the lawyer’s question in the written request for information, “What is the date of separation (if applicable)?”, the father answered “ — ”. According to the husband, he spoke to the wife regarding a separation agreement and passed on some forms for her to fill out for a separation agreement which she ignored and said that they should not have anger or hatred and should have a good relationship. The wife denies this.

[29] According to the wife, she and the husband conducted their lives together as a married couple and intact family, which is her view of what they were, until September 19, 2022 as follows:

a) They renewed their mortgage on the matrimonial home as a married couple on July 7, 2015 and again on July 28, 2020; b) The husband co-signed for the purchase of her vehicle in June 2015; c) For the wife’s mother to be able to visit from Sri Lanka in 2016, they were required to send an invitation letter and proof of their incomes for immigration purposes. They sent the invitation letter as a married couple and the husband provided proof of his income and his notice of assessment. d) When the wife obtained full-time employment with the Thames Valley District School Board in 2018 and was entitled to better and less expensive family health plan coverage than the husband’s plan through his employment, he cancelled his coverage and she acquired the family health plan coverage through her employment, which remains in place; e) They filed their income tax returns with the help of an accounting firm as a married couple until 2022. They filed their income tax returns as separated for the first time in 2023 for the 2022 tax year; f) They maintain their joint bank account. It was not until 2023 that the wife opened an account in her own name; g) They remain joint signatories on their safety deposit box; h) They attended many functions together including: i. a relative’s 30th [birth]day function in the U.S.A with the children on August 3, 2014. A photo shows the parties sitting close together smiling/laughing with one of the husband’s hands on the wife’s arm and his other hand over her hand; ii. the husband’s birthday celebration on June 1, 2015 in their home. A photo shows the husband feeding the wife a piece of his birthday cake from his hand to her mouth; iii. a family wedding with the children in Toronto in July 2015; iv. a surprise birthday party for the wife's mother in July 2016; v. a family trip with the children to New York in August 2016; vi. a family gathering with the children in Toronto August 2016; vii. a friend’s 60th birthday celebration with the children in January 2017; viii. their daughter’s coming of age ceremony in March 2017 which they planned together as a married couple and held in their home; ix. a trip to Canada's East Coast with the children for ten days in August 2017 which they planned together and stayed in the same hotel room. Two of the father’s friends came on the trip; x. a baby shower in September 2017 for a friend which they hosted in their home; xi. the wife’s birthday celebration in January 2018 in their home. A photo shows the wife feeding the husband a piece of her birthday cake from her hand to his mouth; xii. a friend’s son’s first birthday celebration with the children in October 2018; xiii. the wife’s cousin’s anniversary party in Toronto in July 2019; xiv. a trip to Chicago with the children in August 2019. They stayed with the father’s friend. She and their daughter shared a bedroom and the father and their son shared another room; xv. a birthday party in London in August 2019; xvi. a family member's second birthday celebration with the children in October 2019; xvii. a Diwali party in in Toronto. A photo shows the parties standing beside each other smiling; xviii. a family member's 80th birthday celebration in March 2020; xix. a family member's birthday celebration with the children in the U.S.A. in June 2022.

[30] In cross-examination, the husband testified the photos are from functions with the community, that he had to make everyone happy and that he attended functions and travelled as a family to protect the children. He testified that he spoke with the wife’s mother and sister in 2022 about proceeding with a divorce but kept quiet to give it some time.

[31] According to the wife, when she was recovering from surgery in May 2022, a female friend came to visit and raised the topic of the mother and the children joining the friend, her daughters, another mutual friend and her children for a vacation to Costa Rica in August 2022. During the visit, the husband did not say much but afterwards complained to the wife that he wanted to join them. The husband was furious that she would take a trip without him and told her that she required his permission to travel with the children. She told him that she and the children were going even if he did not like it. Two days before she and the children went to Costa Rica, the husband decided to take a trip to the Dominican Republic with his friends.

[32] The mother’s friend says in her affidavit that she has known the parties for many years. When she visited the parties in their home in May 2022 while the mother was recovering from surgery, she raised the topic of the mother and children joining her, her daughters and another mutual friend with her children on a vacation to Costa Rica in August. During the get-together, the husband did not say much but afterwards sent her numerous text messages about how upset he was that he was not vacationing with the wife and their children as a family and that he wanted to join all of them on the trip to Costa Rica. She responded to him that the trip did not include any husbands, only mothers and children. She had no idea that the parties were having marriage problems until the autumn of 2022 when, after returning from Costa Rica, the mother told her that she and the husband were separating.

[33] On September 19, 2022, the wife found a family lawyer’s client intake form that the husband left out on the dining room table for her to see. On October 18, 2022, she received a letter from lawyer Swetha Kumar by email, advising that she has been retained by the husband and understands that the parties’ marriage has broken down with no reasonable chance of a reconciliation. Ms. Kumar suggests that finalizing the issues can best be achieved through a negotiated separation agreement and asks to hear from the wife or her lawyer by October 28, 2022. This was the first communication the wife received regarding a separation between herself and the husband. The letter is silent with respect to a separation date. The wife has never agreed that the separation date is July 1, 2014.

[34] According to the wife, she had no idea that the husband had contacted a lawyer until she received the letter from Ms. Kumar. But for this letter, she and the husband would not be separated. She was still committed to the marriage and had done nothing to move towards a separation. She had not consulted a lawyer. She did not think the parties were separated in any way and had no idea that the husband thought they were separated until she received Ms. Kumar’s letter. The wife was emotional and teary when she testified that she still loves the husband now, that he is the father of her children.

[35] According to the husband, he did not seek legal counsel until 2022 because of the children. It was not the wife’s travel to Costa Rica without him that caused him to seek legal counsel. The only reason that he claimed a separation was because he thinks the wife was having an extramarital affair. Were that not the case, there would be no reason to separate. Her boyfriend, U, often visits them; the wife cooks for him, they eat together like a married couple, go shopping together and do housework together.

[36] According to the wife, U is not her boyfriend. For 15–20 years, U, his wife and their two children have been her and her husband’s family friends in their Sri Lankan community. U is a home renovator who was hired by both her and the husband in 2021 to renovate their kitchen cabinets. In the summer of 2022, U helped them with their basement flooring. The only shopping she has done with U is to go to Rona to pick out items for the kitchen renovations. U always messaged the father first when he was going to come to the home to do renovations. The husband, who works from home, was always present when U came to their home and they all sat together when they ate. She no longer speaks with U or his wife since the husband called U’s wife in January 2023 and alleged that she and U were having an affair. She has never engaged in an extramarital affair of any kind.

[37] The mother’s aunt says in her affidavits that during the period from July 1, 2014 to October 2022, she and the parties attended many family events together and that the parties held themselves out as an intact married couple. In October 2022, at a party attended by her and the husband but not the wife, the husband did not mention his separation but told her that he wanted her to help mend the parties’ relationship. In November 2022, at a family gathering, the husband shared that he regretted having his lawyer send a letter to the wife to move forward with a separation. She denies paragraph 35 of the husband’s affidavit that she supposedly knew the parties had been living separate and apart for many years, that she told him the wife is influenced by bad friends which explains her behaviour, that she asked him to take the wife to counselling and that she would speak to the wife in the meantime.

[38] The wife met with lawyer Zachary Wilson on October 24, 2022 and retained him the following day.

[39] According to the wife, the first time that the husband’s family reached out to her about the breakdown of the marriage was in February 2023 when she received a call that they had heard news of their separation.

[40] The wife issued her application for a divorce, child support, spousal support and equalization of net family property on April 19, 2023. It says that the parties separated on October 24, 2022.

[41] The husband’s answer and claim for a divorce, child support, exclusive possession of the matrimonial home, contents and sale of the matrimonial home is dated May 19, 2023. It says that the parties separated on July 1, 2014.

[42] When the husband was asked in cross-examination about the absence of his IBM pension plan acquired in approximately 2006 and worth approximately $140,000 from his financial statement sworn on February 14, 2024 and paragraph 12 of his answer which states that the wife’s claim for equalization is statute barred, he testified that it is not true that the wife will not get a share of his pension but that maybe his lawyer did that and advised him to do that.

[43] It is reasonable to assume that if the husband had thought that the date of separation was July 1, 2014, he would have answered that date in the Refcio & Associates questionnaire on February 5, 2020.

[44] It is also reasonable to assume that the wife’s trip to Costa Rica in August 2022 with the children but without the husband was what led the husband to leave the lawyer’s intake form out on the dining room table for the wife to see on September 19, 2022 and to move forward to retain Ms. Kumar to write to the wife about separation on October 18, 2022.

[45] I cannot find that either of the parties intended to end the marital relationship or regarded the marriage as being at an end until September 19, 2022.

Final Order

[46] For these reasons, a final order shall issue:

1. The valuation date for the purposes of equalization of the parties’ net family property is September 19, 2022.

Costs

[47] If the parties cannot settle costs after making their best efforts to do so, they may provide written submissions through the JSO (portal) or to london.courthouse@ontario.ca of up to three pages, plus a bill of costs and any offers to settle, from the party claiming costs by June 19, 2024 and from the other party by July 3, 2024. Additionally, both parties shall advise what they believe the other party should receive by way of costs if the other party is found to be entitled to costs. If no submissions are received by June 19, 2024, costs shall be considered settled.

“Justice D.M. Korpan” Justice D.M. Korpan

Date: June 3, 2024

COURT FILE NO.: FC423/23 DATE: June 3, 2024 ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN: Veena Arthi Sivakumaran Applicant

• and - Sivakumaran Suppiah Respondent

REASONS FOR JUDGMENT KORPAN J.

Released: June 3, 2024