Superior Court of Justice - Ontario

COURT FILE NO.: FS-22-28864

DATE: 20240208

RE: Asoudeh Novin, Applicant and: Abbas Sabet-Sarvestani, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Alexander Novak, for the Applicant Maral Mirhosseini, for the Respondent

HEARD: February 6, 2024

ENDORSEMENT

Nature of the Motion

1. The applicant, Asoudeh Novin (“the wife”), brings a summary judgment motion seeking a declaration that the parties separated on September 1, 2014 and not March 23, 2020 as submitted by the respondent, Abbas Sabet-Sarvestani (“the husband”). If the wife’s date of separation is correct, then the husband’s claim for an equalization payment, contained in his Answer, dated May 25, 2022, will be statute barred.

Issue to be Determined

2. The key issue for me to decide on the motion is whether there is a triable issue about the parties having separated on March 23, 2020 as claimed by the husband?

3. For the reasons outlined below, I find that there is no genuine issue for trial regarding the husband’s date of separation. The evidence on the record before me is clear that the parties’ date of separation was September 1, 2014. Accordingly, the husband’s equalization claims are statute barred.

Background

4. The parties were married in Iran on March 3, 1983. They have two adult children, Niki Sabet, age 39 and Sophie Sabet, age 30.

5. According to the wife, the parties separated on September 1, 2014. The husband alleges that the date of separation is March 23, 2020.

6. The wife issued an Application in this court seeking a divorce and corollary relief on October 2, 2015. The husband was personally served with the Application by the wife’s niece, Leila Pourtavaf on October 4, 2015 (“the 2015 Divorce Application”). The 2015 Divorce Application listed the parties’ date of separation as September 1, 2014.

7. The husband did not respond to the 2015 Divorce Application. He never filed an Answer or Claim. He never disputed the date of separation.

8. The wife did not take steps to proceed with the divorce and/or her corollary relief claims because she was preoccupied and dealing with the parties’ adult daughter, Niki, who was battling a serious drug addiction.

9. On March 22, 2022, the wife withdrew the 2015 Divorce Application and issued and served a fresh divorce Application, dated March 24, 2022, in which she only sought a divorce. This divorce Application also listed the parties’ date of separation as September 1, 2014.

10. If the wife is correct that the parties’ date of separation is September 1, 2014, then the six years within which the husband could have brought an equalization payment would have expired on September 1, 2020.

11. On May 25, 2022, the husband served and filed an Answer and Claim seeking an equalization payment and spousal support alleging that the parties’ date of separation was March 23, 2020.

12. The parties attended a case conference on August 2, 2023. Among other things, Kristjanson, J.’s Order provides the husband until September 1, 2023 to produce all documents upon which he would be relying at trial to establish that the parties’ date of separation was March 23, 2020, rather than the wife’s date of separation of September 1, 2014, including the period between September 1, 2014 through March 25, 2020:

a. Texts/What’s App messages exchanged between the parties;

b. Emails between the parties;

c. Social media posts about the parties relevant to continued cohabitation of the parties such as of joint social activities, celebrating social occasions together, gifts, helping each other through difficult times, vacations together;

d. Letters/cards received from the Applicant and if copies were kept, letters sent to the Applicant;

e. Photographs of the couple, by date, including photos of joint social activities, celebrating social occasions together, gifts, helping each other through difficult times, vacations together;

f. Phone records showing frequency/length of phone calls;

g. Evidence of the financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation etc.) and the sharing of assets. Evidence of when steps were taken to separate the parties’ assets, when the parties ceased to use a joint safety deposit box, joint credit cards or bank accounts, and when the parties made plans for his or her assets as a separated person;

h. Evidence of gifts exchanged between the parties, with receipts and photographs if available;

i. If the documents are in Farsi, then the Applicant shall review the documents and indicate within 10 days which documents are required to be translated and the Respondent shall provide the translations within a further 10 days.

13. The husband did not produce any documents to support his alleged date of separation on March 23, 2020. Accordingly, the wife served her motion material on the husband in accordance with the timetable set out in the order of Kristjanson, J.

14. Today’s long motion was scheduled by Kristjanson, J. as a summary judgment on August 2, 2023. The husband has had six months within which to file the documents to support his date of separation. The only documents provided by the husband are those attached as Exhibits to his affidavit, sworn on October 23, 2023.

The Test for Summary Judgement

15. This motion is brought under r. 16 of the Family Law Rules, O. Reg. 114/99 ("FLRs"). Under that rule, either party may bring a motion for summary judgment for a final order without the requirement of a trial. That motion can be brought on all or part of any claim made or defence presented in the case.

16. The terms of r. 16(6) are mandatory: if there is no genuine issue requiring a trial of a claim or defence, the court shall grant judgment accordingly. (see also Hryniak v. Mauldin, 2014 SCC 7 ("Hryniak") at para. 68 and Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429 ("Mega International") at para. 83).

17. There will be no genuine issue requiring a trial if the summary judgment process allows the court to reach a fair and just determination on the merits on a motion for summary judgment. That will be the case when the process (1) provides the court with the evidence required to fairly and justly adjudicate the dispute by making the necessary findings of fact, (2) allows the judge to apply the law to those facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. (Hryniak at paras. 49 and 66, see also paras. 44-45, 49-50 for the principles under which the court makes the determination of a genuine issue for trial).

18. The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial (r. 16(4)). In response, the responding party may not rest on mere allegations or denials but shall set out in affidavit or other evidence, specific facts showing that there is a genuine issue for trial (r. 16(4.1)).

19. In the oft-repeated maxim of Osborne J.A., the responding party to a motion for summary judgment must "lead trump or risk losing” (106150 Ontario Ltd. v. Ontario Jockey Club, 1995 CanLII 1686 (ON CA), [1995] O.J. No. 132 (Ont.C.A.), at para. 35. That principle was reaffirmed in Ramdial v. Davis (Litigation Guardian of), 2015 ONCA 726, [2015] O.J. No. 5630 (O.C.A.) at para. 27, citing Papaschase Indian Band No. 136 v. Canada (A.G.), 2008 SCC 14, [2008] 1 S.C.R. 372, at para 11 supra, at para. 28).

20. In other words, once the moving party discharges the burden of showing that there is no genuine issue requiring a trial, the onus shifts to the responding party. That party must then provide evidence of specific facts showing that there is a genuine issue requiring a trial (Ramdial v. Davis, at para. 30).

21. A self-serving affidavit is not sufficient itself to create a genuine issue in the absence of detailed facts and supporting evidence. (r. 16(4.1) and Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, at para. 31).

22. An adverse inference may be drawn from a failure to support the allegations or denials in a party's pleadings. (Pearson v. Poulin 2016 CarswellOnt 11368 at para. 40).

23. On a motion for summary judgment, the court is entitled to assume that the record before it is complete, that it contains all of the evidence that a party would present if there were a trial. (Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438, at para. 8, citing Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), 111 O.A.C. 201, at para. 17; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 27, 33-34, aff'd 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97; and Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292, at para. 54).

24. In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties. But in addition, the court may use its expanded powers under subrule 16 (6.1), unless it is in the interest of justice to do so at trial. That subrule states:

Powers

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

4. Further, in exercising its expanded powers, the court may hear oral evidence presented by one or more of the parties, with or without time limits, in the form of a mini-trial (r. 16(6.2).

5. As Paciocco J.A. wrote for the Ontario Court of Appeal at para. 83 of Mega International, those powers "...are presumptively available to a summary judgment motion judge to use to fairly and justly adjudicate a claim at a motion for summary judgment" (Hryniak, at para. 45). However, the court is not required to resort to those powers to make up for a party's evidentiary shortcomings (see Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438 at para. 8).

6. At para. 5 of Hryniak, Karakatsanis J. called for summary judgment rules to be interpreted broadly, "... favouring proportionality and fair access to the affordable, timely and just adjudication of claims."

Test for Determining the Date of Separation

28. The key to this motion is not simply the setting of a valuation date. It is the wife’s request that I dismiss the husband’s application for an equalization payment because of the passage of the applicable six-year limitation period.

29. Under s. 7(3) of the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”), an application for an equalization payment may not be brought under s. 5(1) after the earliest of: (a) two years after the date the marriage is terminated by divorce or judgment of nullity; (b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; (c) six months after the first spouse’s death.

30. The court has no discretion to vary the valuation date: Serra v. Serra, 2009 ONCA 105, at para. 41.

31. Neither party has made reference to FLA s. 2(8), which allows the court, on motion, to extend a time prescribed by that statute if it is satisfied that (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and (c) no person will suffer substantial prejudice by reason of the delay. However, at the parties’ case conference before Kristjanson, J., on August 1, 2023, it is clear from the Endorsement that this was discussed and it states that the parties agreed that procedurally the issue of the date of separation should be determined by way of a summary judgment motion.

32. In determining whether it is appropriate to grant summary judgment in this case, it is important to consider the manner in which a court may determine a date of separation when the parties cannot agree. That determination is very much a fact-based exercise.: Duhaney v. McLean-Duhamey, 2020 ONSC 6564, at para. 51.

33. The test for the date of separation, which is referred to as the “valuation date” in Part I of the FLA, dealing with family property and equalization, is found at s. 4(1). When there is no declaration of a nullity, successful application based on improvident depletion, or death of a spouse, that provision defines the term “valuation date”, as “the earliest of the following dates”:

a. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation, [and]

b. the date the divorce is granted.”

34. That definition is again applied in s. 5(1), which sets out a spouse’s right to an equalization of the parties’ net family properties.

35. Since the parties have yet to divorce, the applicable test is the date that the spouses separate and there is no reasonable prospect that they will resume cohabitation.

36. The leading case on the determination of a valuation date is the decision of Weiler J., as she then was, in Oswell v. Oswell, 1990 CanLII 6747 (ON SC), [1990] O.J. No. 1117, 74 O.R. (2d) 15 (Ont. H.C.), aff’d (1992), 1992 CanLII 7741 (ON CA), 12 O.R. (3d) 95 (Ont. C.A.). At para. 6, Weiler J. offers the following indicia of separation:

(1) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms: Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart.

(2) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium.

(3) The absence of sexual relations is not conclusive but is a factor to be considered.

(4) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.

(5) Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.

7 … An additional consideration to which the court may have regard in determining the true intent of a spouse as opposed to that spouse's stated intentions is the method in which the spouse has filed income tax returns. …

[References to prior authorities omitted]

37. In O’Brien v. O’Brien, 2013 ONSC 5750 McDermott J. considered how to determine a date of separation when the parties continued to live in the same home. He spoke at para. 52 of first looking for “an unequivocal act by the separating spouse indicating that there [sic] he or she wishes to separate without the possibility of reconciliation.” Absent such an unequivocal act, the court looks to “the way the parties subsequently live their lives” and whether it “will necessarily indicate whether one or both consider themselves to be living separate and apart” (para. 53). At that stage, the court looks to indicia of the nature set out in Oswell.

38. In Neufeld v. Neufeld, 2019 ONSC 1277, Lococo J. reviewed a number of cases dealing with the indicia of separation where parties remained in the same home, including O’Brien. In that case there was a 14-year gap between the parties’ purported separation dates. At para. 66, Lococo J. stated that “courts have often declined to find that spouses who continued to [sic] living under the same roof were separated until the occurrence of a defining ‘event of separation’ that clearly indicates that the parties are separated.”

39. Yet in other cases, the court was able to make that finding on the facts. One example was Parsalidis v. Parsalidis, 2012 ONSC 2963, cited in Neufeld, at para. 67. There, one spouse lived in a self-contained part of the house, rarely accompanied the other spouse to family events, and made very limited contributions to family finances.

40. In Neufeld, Lococo J. concluded on the point that “[a]s a general observation, previous decisions relating to whether parties living under the same roof are separated assist in indicating a general approach to determining that issue, but the facts of any particular case are not necessarily of critical importance.” In other words, these cases are fact specific and the facts of one previous decision do not necessarily bind the court in subsequent one.

Is this Case an Appropriate one for Summary Judgement?

41. Each party points to reasons the court should find that their valuation date is the correct one.

42. The wife’s evidence points to both an absence of evidence by the husband and her own corroborating evidence. In particular, she relies on:

a. The fact that she issued the 2015 Divorce Application for divorce and corollary relief stating that the date of separation was September 1, 2014.

b. The fact that the husband was served with the 2015 Divorce Application by her niece. He chose not to Answer the 2015 Divorce Application. He did not dispute the valuation date.

c. The independent evidence of her niece, Leila Pourtavaf (“Leila”). Leila is an Assistant Professor in the Department of History at York University. Leila deposes that her aunt and uncle separated in 2014 and that the wife told her that she was leaving the husband because (a) he had taken out lines of credit on the matrimonial home and sent the money to Iran; (b) he was spending more and more time in Iran; and (c) he had another woman in Iran. Leila was unequivocal that she took the wife to see a lawyer about separation, and that on October 5, 2015, she personally served the husband with the 2015 Divorce Application at the matrimonial home when the wife, Sophia and Niki were home. She describes the husband as being flippant, laughing and throwing the envelope in which the 2015 Divorce Application was contained, on the table. Finally, Leila swears that her aunt never told her after September 2014 that she wanted to reconcile with the husband, just that she felt it was important to the children, particularly, Niki, to have some sort of a relationship with the husband.

d. Attached to Leila’s affidavit is a copy of an email the husband sent the wife, dated June 23, 2015, in Persian. The translation of the email contains the following statements by the husband to the wife, which corroborate that the parties were separated by the date of the email:

i. “I told you I would leave you. You didn’t listen. Now, everything between us is over.”

ii. “Whether or not you want to make our separation official or not is your business.”

iii. “Whatever place you want to move to next is not my business. It’s your life. What you want to do is not my business. Nikki has brought me nothing but shame. She is not my daughter.”

iv. “I have left the business of Toronto apartments in your hands. DO as you want with them. Please only contact me in regards to work. I will not be returning to Canada except for emergency circumstances. Everything is over.”

e. The strongest independent evidence, that of her daughter, Sophia Sabet. Sophia is unequivocal that her parents separated in 2014; that she was present for many occasions during which her father physically abused her mother and her older sister; that she and her mother came across pictures of her father and another woman in or around 2012 and that she recalls a conversation with her mother in the summer of 2014, when her mother told her of her decision to separate from the husband. Finally, Sophia swears that she was present when her cousin, Leila, served her father with the 2015 Divorce Application at their home. Sophia specifically states that up until being served with the 2015 Divorce Application, the husband had been spending almost all of his time in Iran and would come to Toronto every year around March to complete his taxes, during which he would stay at the matrimonial home and the wife would leave to spend time at her sister’s home. She explains that her father started to rent his own accommodations when he came to Toronto after being served with the 2015 Divorce Application. Sophia deposes that her parents did not engage in activities together after the husband was served with the 2015 Divorce Application; that her mother was clear that she had no intention other than to be separated with the husband; and that the wife was distracted with her sister’s, Nikki’s, drug addiction issues after 2015 and things only began to improve with her sister at the beginning of Covid.

f. The fact that in September 2014, the wife was on a Skype call with the husband when he was in Iran. The connection was bad and when the husband thought the call had disconnected, the call reconnected and the wife saw the husband in his apartment in Iran with another woman having dinner. The husband does not dispute that this took place. He also does not dispute that he was having an affair with another woman or that the wife found out about it during a Skype call. The wife swears that she called the husband back but he would not answer, after which she called his business partner, Masood Hakimi, and told him to tell the husband that she was finished with him. Again, the husband does not dispute this.

g. The fact that since 2014, the parties have not had sex; she has felt no affection for the husband since before their separation; she has been afraid of the husband since shortly after their marriage; the husband admitted to the wife that he was involved with other women; when the husband returned to the home in 2015, the wife went to her sister’s home for one month; when he returned to the home in 2016, the wife’s sister and her husband tried to reason with the husband to accept the divorce and he became violent with her brother in law; when he returned home in 2017, Niki was struggling seriously with her addiction issues and the wife was preoccupied with getting her help and did not spend time with the husband, except for the husband blaming the wife for Nikki’s drug addiction and him being physically violent with her; when he returned home in 2018, he came for a short time in May and was physically violent toward her and in 2019, when he came to her home they fought.

h. The fact that in September 2019, the wife, for the first time, reported the husband’s violence toward her and obtained a peace bond. She instructed her building to forbid the husband from accessing the building or her residence. He has not been to her home since then until he was arrested in 2023 for breaching his peace bond.

i. The fact that attached as Exhibit to the wife’s affidavit is a letter from the Security Supervisor at the parties’ apartment building located at 7905 Bayview Avenue, Thornhill, Ontario, confirming that the wife advised the building in 2019, that they were to deny entry to the husband.

j. The lack of objective evidence that she and the husband had any discussions, in person or otherwise, about the possibility of a reconciliation.

k. The lack of independent evidence that the parties ever did any activities together, attended any events together, did anything together as a couple or a family, or engage in therapy, mediation or any other form of counselling to discuss reconciliation.

l. The fact that her counsel served the husband with a Request for Information asking for a copy of his Passport to show the amount of time he was absent from Canada and he refused to provide same. The fact that on November 4, 2023, the wife’s counsel sent the husband’s counsel The Canada Border Services “Authority to Release Personal Information to a Designated Representative” form and the husband declined to sign the Authorization. Negative inferences should be drawn from the husband refusal to answer this basic information.

m. The fact that there is not a single text, email, message, photograph, or communication between the parties between September 2014 and March 23, 2020 demonstrating any evidence that there was a reasonable prospect of a resumption of their cohabitation.

n. The fact that the wife produced emails between the parties in 2015, in which the husband states:

i. On June 20, 2015,

1. “I had warned you in the past on several occasions, that your inhumane and negative behaviour will lead to me leaving you. You did not pay attention to this.”

2. “In recent emails, I have told you openly your future life is your own business.”

3. “You have enough access to resources and capability on your own.”

ii. On June 21, 2015,

1. “I wouldn’t worry about it too much, each day, thousands of couples separate. Many have far worse circumstances than yours.”

2. “You are lucky that you live in a country where society does not frown upon these circumstances [divorce].”

3. “it is best that you prepare yourself for new circumstances.”

o. The fact that on September 26, 2015, the wife sent an email to the husband in which she stated,

i. “Just as I informed you yesterday in front of Niki, I agree with your proposal of divorce, and our daughters have said they will respect our decision.”

ii. “it is best that during the short time you have during this visit [to Canada] we don’t get into meaningless and destructive fights.”

iii. “In the last four months, through emails and on phone calls with me and our children, you have clearly expressed your opinions and decisions in regards to our life together/our marriage. There is no more room for talking.”

p. The lack of any independent or corroborating evidence that March 23, 2020 is the parties’ separation date. This includes the husband not producing

i. any social media posts showing the parties doing any joint social activities between September 1, 2014 and March 23, 2020,

ii. any letters or cards sent by him or the wife during that time period on occasions,

iii. any photographs of the parties doing joint social activities, celebrating social occasions together or taking vacation together between September 1, 2014 and March 23, 2020;

iv. any phone records showing the frequency or length of calls between the parties during this time period; and/or

v. any evidence of gifts exchanged between the parties during this time period.

q. The fact that she described herself as married in her income tax returns after 2014 until and including 2018 is not the unequivocal act the husband makes it out to be. The wife understood that she was either married or divorced. She never understood a marital status as “separated” until after she reported the family violence to the police and it was explained to her that she was “separated” for many different purposes, after which she filed her income tax returns as separated.

43. For his part, the husband points to and relies upon the following evidence:

a. He applied to Service Canada for Old Age Security on May 7, 2018 and the wife is the beneficiary of his Old Age Security, which he claims would not be the case if they were separated in 2014. Note the Old Age Security form attached to his affidavit does not identify who the beneficiary is.

b. He exchanged text messages with his daughter, Sophia, on August 23, 2020, September 18, 2020, September 26, 2020, and November 19, 2020 stating that he agreed with her that the wife was a hero for helping her older sister Nikki with her addictions. The husband’s counsel made submissions that the importance of these text messages are that if the parties were separated, he would not have been so complimentary or kind about the wife. Note that both texts attached to his affidavit are dated after his date of separation.

c. The wife is listed as the beneficiary of his life insurance policy as at April 21, 2020, which he claims would not be the case if the parties were separated in 2014. The husband’s counsel made oral submissions that the wife is no longer the beneficiary of his life insurance policy but there is no evidence on the record to indicate that is the case.

d. The wife remained insured on the husband’s car insurance policy with Aviva verified by a statement for the period September 30, 2017 to September 30, 2018, and the parties were listed as “married” which would not be the case if they separated in 2014.

e. He shows that he made a payment to Breen Drapery Hardware of $135 in 2019, which he claims was a supplier of a joint company he and the wife ran. He claims he would not have made this payment if the parties were separated.

f. He transferred money from Iran to Canada on July 27, 2015, which money is listed to go to both parties, which he claims he would not have done if the parties were separated in 2014.

g. On March 22, 2020, he wrote to Mr. Morshar asking for assistance but stating not to mediate between him and the wife and his friend would have known if he and the wife were separated.

h. The fact that wife filed her income tax return in 2018 as a married spouse.

Use of the Court’s Fact-Finding Powers, if Required

44. Even if the bald assertion by the husband is that the parties’ marriage did not end until March 23, 2020, and the circumstantial evidence about subsequent dealings between the parties, were considered by me to be sufficient to raise a genuine issue requiring a trial about when the parties’ relationship ended, the next step under the Hryniak framework laid down by the Supreme Court of Canada would be for me to invoke the fact-finding powers under r. 16(6.1) to determine whether a trial can be avoided through their use. Those powers enable me to weigh the evidence about the subsequent dealings between the parties and evaluate the credibility of the parties, and, in doing so, I arrive at the same finding, that their relationship ended in or about

45. In Oxygen Working Capital Corp. v. Mouzakitis, 2021 ONSC 1907, at para. 42, Myers, J. sets out the following questions, which are among those that the court may consider if it appears that there may be a genuine issue requiring a trial and the enhanced fact-finding powers are engaged:

a. Will making findings of fact on the evidence before the court provide a fair and just result as compared to a mini-trial or a trial?

b. Does the material before the court illuminate the factual issue sufficiently to allow the judge to make findings of fact and credibility?

c. Is there something missing that is needed for basic fairness despite the fact that the parties chose not to put that evidence forward?

d. Do considerations of the litigation as a whole mandate some further process before making factual or credibility findings?

46. In my review of the Exhibits to the husband’s affidavit, none of these documents demonstrate that the parties were not separated between September 1, 2014 and March 23, 2020. The life insurance statement provided by the husband lists the wife as the beneficiary of his policy in April of 2020, but that does not equivocally mean the parties were not separated in 2014. Further, the fact that both parties remained on the Aviva car insurance policy in 2017-2018 does not equivocally mean that the parties were not separated in 2014. Finally, the fact that the wife files her income tax return in 2018 as “married” had a plausible explanation since she did not report the family violence she experienced until 2019 and was not aware that she could file her income tax return as a “separated” spouse before that. It is far more telling that the husband sent the wife emails in 2015 clearly identifying his intentions to be separated from her, advising her that what she does is her business and that he has no intention of returning to Canada. Further, the evidence from the wife’s daughter and niece confirms that there was no reconciliation attempts between the parties. Finally, the husband was not able to produce any evidence of messages, photographs, phone records, gifts, or receipts to show that the parties spent time together as a couple, either privately or socially in the community, or had any interactions as a couple between September 1, 2014 and March 23, 2020.

47. I find that knowing all of the circumstances, the husband would have reasonably believed that there was no prospect of a resumption of cohabitation once the 2015 Divorce Application was served on him. At the very latest, by the time the husband sends the emails to the wife in June of 2015, it is clear that he does not believe there is a prospect of a resumption of their cohabitation or reconciliation. This is clear based on his stated words and intentions and a consideration of the objective factors as required and set out in para. 6 of Warren v. Warren, [2019] O.J., No. 1751.

48. The evidence that the relationship between the parties ended in 2014 far overwhelms the husband’s assertion now that it ended on March 23, 2020. I am able to make the finding now about when the parties’ relationship ended based on the materials filed, which I find to be sufficient for the assessments required on this point of credibility. The direct evidence from the wife is supported by the circumstantial, surrounding evidence, independent and corroborated evidence from third parties. Conversely, the bald assertion by the husband that the parties’ separated on March 23, 2020, stands on its own and is uncorroborated.

49. The husband did not produce a single item of evidence to support his chosen date of separation of March 23, 2020. In fact, his counsel in oral submissions stated that on the break she asked her client why he chose March 23, 2020, and he stated that was when he learned he could not come back into the matrimonial home. Even this evidence is inconsistent with the evidence on the record before me, which is that the wife reported the family violence to the police in October 2019 and obtained a peace bond at that time. A letter from the Security Supervisor at the parties’ apartment building located at 7905 Bayview Avenue, Thornhill, Ontario, wrote a letter confirming that the wife advised the building in 2019, that they were to deny entry to the husband.

50. The husband was given 6 months by Kristjanson, J. to serve any and all documents on which he intended to rely to support his assertion that the parties separated on March 23, 2020. He did not do so. He declined to produce a copy of his passport and to answer a RFI about his passport to demonstrate the time he spent in Canada between September 2014 and March 2020. He deposed that the parties only communicated by Skype and that was why he has no records of their discussion, yet the wife was able to produce emails exchanged between the parties as well as WhatsApp conversations. Further, during the husband’s oral submissions, his counsel referred to a WhatsApp conversation she had failed to put in her materials between the parties, thereby proving that there were other modes by which the parties communicated and the husband could have put that communication forward to the court if it supported his date of separation.

51. Further, the husband could have sought leave to conduct questioning under the FLRs, yet he chose not to. The husband could have decided to bring a motion to extend the time limitation periods under the FLRs, another procedural option discussed at the parties during the August 3, 2023 case conference as outlined in Kristjanson, J.’s endorsement. As indicated above, on a motion for summary judgment, the court is entitled to assume that the record before it is complete, that it contains all of the evidence that a party would present if there were a trial. The husband had ample opportunity to put his best foot forward, as is the requirement to defend a summary judgment motion. I find that the husband did not discharge his onus to provide evidence of specific facts showing that there is a genuine issue requiring a trial that his alleged date of separation on March 23, 2020.

52. Making the finding now that the parties’ marriage ended in September of 2014, with or without the use of the enhanced fact-finding powers, leads to a fair and just result. There is sufficient evidence to justly and fairly adjudicate this aspect of the dispute, which is determinative of the husband’s claims asserted in this proceeding.

53. Conversely, I do not consider that it would be in the interest of justice, or efficient or fair, to require the parties to go through the time, effort, and expense of a trial (or “mini-trial”) in these circumstances. Prolonging the inevitable defeat of the husband’s claims when they are clearly statute barred (as discussed in the next section of this endorsement) does not serve the interest of justice in this case. The overarching principle is proportionality. Summary judgment ought to be granted unless the added expense and delay of a trial is necessary for a fair and just adjudication of the case. This is also consistent with the broader systemic concerns about resource allocation, efficiency, and the affordability of litigation.

54. The end of the parties’ relationship started the limitation period running and, regardless of whether it was a two-year or ten-year limitation period, it had lapsed by the time this action was started on May 24, 2022.

55. If the wife’s valuation date of September 1, 2014 is not the correct valuation date, my review of the evidence is that by June 20, 2015, the husband’s emails to the wife make it clear that he understood there was no reasonable prospective of the resumption of the parties’ cohabitation or reconciliation. The six years limitation period would have lapsed in that event by June 20, 2020, again before the time this action was stated.

ORDER

56. This court makes the following order:

a. The parties’ date of separation was September 1, 2014 at the earliest and June 23, 2015 at the latest, which is more than six years after the date the spouses separated and there is no reasonable prospect that they will resume cohabitation.

b. The respondent’s property claims contained in his Answer, dated May 25, 2022, are hereby dismissed, which include an order for an accounting of all property in which the applicant had an interest on the date of marriage, the date of separation and in which she has a current interest; an order for equalization of net family properties; an order that the business 1225276 Ontario Limited, the drapery shop, gets evaluated, and the respondent receives his share of the business plus any interest for the past few years.

c. The applicant and respondent are encouraged to settle the issue of costs arising from this summary motion by agreement. If they are unable to do so, the applicant shall serve and file written costs submissions of no more than 3 pages, not including the Bill of Costs or offers to settle within 14 days of the release of this Endorsement. The respondent shall serve and file written costs submissions of no more than 3 pages, not including the Bill of Costs or offers to settle within 7 days of being served with the applicant’s written costs submissions. Reply submissions, if any, shall be no more than 1 page and shall be served and filed within 5 days of the applicant being served with the respondent’s costs submissions.

M. Kraft, J.

Date Released: February 8, 2024