Reasons for Decision

Court File No.: FS-09-000346560
Date: 2025-02-19
Ontario Superior Court of Justice

Between:
Jong Hyun Kim, Applicant
and
Soon Nam Lee, Respondent

Appearances:
Jenna Lee, for the Applicant
Ken McDonald, for the Respondent

Heard: February 10, 11, 12, 2025

Justice Kiran Sah

Introduction

[1] The parties cannot agree on when they separated. The date of separation/valuation date is relevant to the request for a divorce and the claims each party advances for spousal support under the Divorce Act, RSC 1985, c 3 (2nd Supp.) and for equalization of net family property under the Family Law Act, RSO 1990, c F.3 (the “FLA”).

[2] The parties also disagree about whether a residential property purchased in 2007 qualifies as a matrimonial home.

Position of the Parties

[3] The applicant takes the position the date of separation/valuation date was September 2007. He seeks a declaration that 63 Madawaska Avenue, North York, Ontario (the “Madawaska property”) is a matrimonial home.

[4] The respondent takes the position the date of separation/valuation date was December 2002. She seeks a declaration that the property is not a matrimonial home and further seeks an order directing the Land Registrar to remove that designation from the land registry, which was registered on title on March 5, 2009.

Issues to be Determined

1. When did parties begin to live separate and apart, with no reasonable prospect that they would resume cohabitation?
2. Is the Madawaska property a matrimonial home?

Legal Principles

[5] The relevant sections of the Divorce Act are ss. 8(1) - 8(3) and 15.2(4)(a). These sections deal with the concept of living “separate and apart” in the context of a claim for support, and the “length of time the parties cohabited” in the context of spousal support.

[6] The relevant section of the FLA is s. 4(1) which, in the context of family property, defines “valuation date” as the earliest of five possible dates. In this case, subsection 1 of 4(1) applies, referring to the date the spouses separated and there was no reasonable prospect that they would resume cohabitation.

[7] As stated by the court in Al-Sajee v. Tawfic, 2019 ONSC 3857, at para. 26, ascertaining when parties begin to live separate and apart requires a careful analysis of the unique realities of their relationship, routines, social and other habits, practices and living arrangements over time. In deciding how much weight, if any, to give to any particular factor, the court must carefully assess whether there have been any real changes in regard to that factor since the parties were clearly together in a conjugal relationship. In addition, because of the particular dynamics of each relationship, no one factor will be determinative of whether spouses are living separate and apart; a global analysis and weighing of all factors is required.

[8] In Al-Sajee, the court set out various factors to consider. They are summarized as follows:

1. To be living separate and apart requires: (i) the parties live apart from each other, and (ii) there must be an intention on the part of one or both of them to live separate and apart from the other.
2. To live “apart” requires a physical separation of the parties. However, they can be living separate and apart under the same roof. The determination of whether parties who reside in the same home are living separate and apart involves a consideration of all relevant factors listed.
3. Two residences and significant periods apart in the two residences is not determinative. Parties 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.
4. Whether there is a withdrawal by one or both parties from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the matrimonial relationship.
5. A meeting of the minds is not required. A physical separation, coupled with the intention of one party to live separate and apart, is sufficient.
6. A clear statement or unequivocal act by one of the parties of their desire to terminate the relationship will be very relevant.
7. In assessing “intention”, the court must strive to determine the parties’ true intent and not simply their stated intent at the time of hearing.
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.
9. The degree to which the parties have been intimate with each other.
10. Whether the parties have been involved romantically with other people.
11. Whether the parties have continued to discuss family issues and problems and communicate about daily issues.
12. Whether there have been any changes in expectations regarding their accountability to each other for daily activities.
13. The extent and nature of the parties’ contact with each other, including whether they have continued to participate in joint social activities. 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”.
14. Whether the parties have attended with their children for family events.
15. Whether the parties have continued to share and participate in each other’s daily routines as in the past, such as eating meals together and sharing household chores.
16. Whether the parties have celebrated special occasions together and/or vacationed together.
17. Whether the parties have purchased gifts or exchanged other tokens of affection with each other.
18. Whether the parties have supported each other with respect to extended family obligations, through difficult times and with each other’s personal issues.
19. How the parties have referred to each other to third parties.
20. Documentary evidence respecting their relationship status is also relevant (i.e. Income Tax Returns) as is the receipt of any benefits claimed that are conditional on their relationship status.
21. Whether the parties have retained or consulted a counsellor or mediator.
22. 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.
23. Whether the parties have continued to share the use of assets.
24. The parties’ behaviour towards each other in the presence of third parties.
25. Whether the parties have taken steps to legally terminate their relationship and resolve issues relating to their separation.

[9] Section 18 of the FLA defines “matrimonial home” as (1) every property in which at least one of the spouses has an “interest”, and (2) which the spouses ordinarily occupied as their family residence at time of separation.

Credibility Assessments

[10] An assessment of the parties’ credibility and reliability is crucial to a determination of the issues in dispute.

[11] When determining the date of separation/valuation date, findings of fact are required, and this can be difficult in situations where the parties present vastly conflicting evidence and diametrically opposed characterization events.

[12] As articulated by Jarvis J. in Jayawickrema v. Jayawickrema, 2020 ONSC 2492, at para. 28:

[T]he assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may impress the court with the coherence and logic, or common sense, of their narrative but be unreliable due to their interest in the outcome of the case or the lack of probative information. Or a witness may be so interested in a case that they are incapable of making an admission or facilitating the disclosure of information that they perceive as helpful to the other party and harmful to their case. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. Several of the many considerations relevant to the weighing and assessment of witness credibility and reliability, and relevant to his case, were comprehensively reviewed in Al-Sajee by Chappel J. who aptly observed that,

…the judge is not required by law to believe or disbelieve a witness's testimony in its entirety. On the contrary, they may accept none, part, or all of a witness's evidence, and may also attach different weight to different parts of a witness's evidence. [Citations omitted.]

[13] With respect to the applicant, his overall credibility and reliability was significantly questioned for the following reasons.

[14] The applicant presented as a difficult witness. He could not answer very basic questions without repeated probing. For example, the applicant was repeatedly asked if he was charged criminally for an incident between himself and the respondent. In response to the multiple questions, he repeatedly denied the incidents ever took place. He eventually admitted he was charged.

[15] In addition, he was asked several times whether he was a party to litigation with his eldest daughter regarding a property purchased in her name (the “Olive Avenue property”). He finally admitted that he was a respondent to the application.

[16] For context, the parties’ eldest daughter commenced a civil application for a determination of whether a sum of money, held in trust, should be released to her or whether a portion of it should be released to the respondent as a resulting trust.

[17] Many of the applicant’s answers to questions on cross-examination were evasive, imprecise, and at times contradictory. For example, when questioned about the Olive Avenue property litigation, the applicant maintained that he was unaware of the status of the litigation and if funds were released. He maintained his position that the funds were being held, not specifying whether they were held by the court or counsel.

[18] On cross-examination, the applicant was shown an endorsement made by this court in 2014, wherein the court concluded there was no evidence of a resulting trust claim in favor of the respondent and ordered that the money held in trust be released to the parties’ daughter in full.

[19] The applicant also testified that he did not sign any paperwork relating to this litigation. He confirmed this repeatedly. His evidence was contradicted on cross-examination when his signed affidavit was presented to him.

[20] Lastly, the applicant’s testimony was contradicted by his own previously sworn evidence. For example, in the context of the present litigation, the applicant maintains that the parties separated in September 2007. However, on cross-examination, he confirmed that it was his sworn evidence, as of March 26, 2014, that the parties separated in February 2007. He did not explain this inconsistency.

[21] With respect to the respondent, while most of her answers on cross-examination were long-winded, she did not have difficulty recounting historical events. The respondent was not subjected to a long cross-examination. Her evidence was largely unchallenged.

[22] The respondent was not evasive in her answers and her evidence was consistent with what was plead. Furthermore, the respondent’s testimony was largely corroborated by the evidence of others in a position to speak to events concerning the parties and their lives.

[23] Specifically, the respondent’s evidence about family violence and timelines regarding moves and purchases of property from 2002 to 2007 was confirmed by the evidence of the parties’ three adult children who all testified at trial.

[24] While it is recognized that the children may have conflicting interests with their father given past and potential future litigation between some of them, their motives or potential intent to mislead was not raised in cross-examination.

[25] Overall, where the parties’ evidence differs, I have preferred the evidence of the respondent.

Evidence and Analysis

[26] The evidence in chief of each witness went in by way of affidavit. Each witness was subject to cross-examination.

[27] The applicant called two witnesses in support of his position and the respondent called three witnesses.

Family Violence

[28] The parties married in 1985 and there are three children of the marriage, all of whom are independent adults.

[29] It is the respondent’s evidence that the applicant has a very bad temper and was frequently severely verbally abusive towards her and the children. She gave evidence of physical and verbal abuse requiring police involvement.

[30] The respondent also recounted the applicant’s physical attack on the party's eldest child, which resulted in her running away from home in early 2002. This was corroborated in the evidence of the eldest child.

[31] The applicant denied any allegations that he committed family violence.

Move within Korea

[32] In early 2002, the respondent and children moved from their home in Jeonju to Seoul to get away from the applicant. This was corroborated by the eldest daughter who gave evidence the applicant did not move to Seoul but did visit from time to time. During these visits, there were further incidents of violence.

[33] Evidence regarding the respondent’s and children’s move to Seoul, Korea was not denied by the applicant. The undisputed evidence of the applicant and respondent living separate and apart in 2002 is a factor that I place weight on in this analysis.

Allegations of Infidelity

[34] According to the respondent, the applicant remained apart from the respondent and began living with another woman in approximately 2001. This continued until he moved to Canada in 2005. The applicant did not deny this evidence.

[35] The applicant alleges the parties separated in 2007 when he discovered evidence of infidelity between the respondent and one of his employees. He gave evidence that an incident occurred where he expressed anger by “hitting a knife into a wall and the dining table”, which led to three months’ incarceration and a restraining order.

Trip to Hawaii

[36] According to the applicant, the parties enjoyed a harmonious life after the respondent and children moved to Canada, which included a trip to Hawaii in 2003. The applicant attached to his affidavit a photograph of the parties and the children in Hawaii. It was the applicant’s evidence that the respondent and the children departed from London, ON, where they were residing, and he departed from Korea.

[37] It is the respondent’s evidence that she and the children only went to Hawaii at the applicant’s request. He claimed he had a business meeting there and his partners were bringing their families. It was her evidence that the applicant wanted his business partners to see his children. She claimed she agreed to go on this trip to not jeopardize the child support she was receiving.

[38] She also thought the kids would benefit from the trip but did not elaborate as to how they would benefit.

[39] This trip is not determinative of the date when the parties began to live separate and apart.

Finances

[40] The applicant denies the respondent fled to Canada due to family discord. He claims that he supported the family’s living expenses and ensured their stability.

[41] The respondent and children first rented a property in London, Ontario. The applicant claims that he purchased a house in London, Ontario for $380,000 to address complaints from neighbours about the smell of fermented soybean paste soup and to ensure his family's welfare in Canada.

[42] He claims to have thought purchasing property in Canada was a good investment. According to him, he brought approximately $900,000 to Canada to acquire several properties.

[43] He claims that these properties were all funded through his earnings in Korea. He also claims that he was covering all educational and housing expenses and that the respondent and the children did not work and lived solely off of his income.

[44] It is the respondent’s evidence that when they separated in 2002, the parties made a verbal separation agreement which required the applicant to pay both spousal and child support. They agreed that there would be no division of property.

[45] In 2002, the respondent owned two condominiums and had approximately $300,000 in cash. She claims to have asked the applicant to transfer the money to her in Canada. She also claims that, consistent with their agreement, the applicant did pay child and spousal support. She does not specify the quantum or frequency of the payments.

[46] It is respondent’s undisputed evidence that, prior to 2007, she did not have any joint bank accounts or joint credit cards with the applicant; she drove a car registered in her name; they did not have their cell phones on a joint family plan; and she did not share a safety deposit box or storage unit with the applicant.

Permanent Residence Application

[47] The applicant claims that, when he applied for his permanent residence status, he declared himself as being married to the respondent. Given that the parties are not divorced, this statement is not inaccurate.

[48] It is the applicant’s evidence that he moved to Canada in 2005 because his business in Korea failed. The respondent submits that he applied to immigrate to Canada because his business failed. She submits that if his business was thriving, he would not have moved, claiming the move had nothing to do with her or the children, and was related to his own personal gain.

Move from Korea to London, ON and the London Property

[49] According to the respondent, she moved to Canada because it was far from South Korea, and because the applicant and his friend told her that the children could get a good education here. This is not disputed by the applicant. The applicant gave evidence that the children and the respondent relocated to Canada for educational purposes.

[50] They first moved to London, Ontario and the applicant claims he continued to operate his business in South Korea, visiting the family approximately six times per year. His passport records reveal one trip to Canada in 2002, five trips in 2003, and four trips in 2004. He gave no evidence about how much time was spent in Toronto and how much time was spent in London with the respondent and the children.

[51] The respondent and the children lived in London, ON from 2002 until early June 2007. The children attended school in London.

[52] During this time, the respondent went back to South Korea once, but not on a social visit. She went back to Korea to request the applicant send her the money that he promised. On this visit, the respondent did not stay with the applicant, but rather with relatives.

[53] The children and the respondent acknowledged that the applicant occasionally visited them in Canada, but claimed he spent more time with his friends than with the respondent.

[54] When visiting London, the eldest child testified that the applicant slept in the guest room. The eldest child never witnessed signs of affection between the parties.

[55] The children testified that on at least one occasion the applicant became violent and angry, and the police had to be called.

[56] The youngest child testified that the applicant’s visits were short and that he witnessed the applicant drinking and losing his temper. He did not remember the applicant visiting for Christmas or anyone's birthday.

[57] When visiting the family in London, the applicant stayed in a guest room, while the respondent and the kids slept in the master bedroom.

[58] The applicant claims that he, the respondent, and the children participated in church and community activities, building friendships with other families. He did not tender evidence from any of those families or friends. He relied only on evidence from individuals he met in 2006/2007.

[59] I prefer the evidence of the respondent and the children. I accept that the children tried to stay away from the applicant, that their relationship was fractured; that they did not communicate with him; and that they did not know when the applicant was coming or going.

[60] In 2006, the respondent purchased a property in London, as the sole registered owner. She claims the property was purchased with her money that she asked the applicant to hold for her.

Move from London, ON to Toronto, ON and Acquisition of the Madawaska Property

[61] The eldest child moved from London to Mississauga in 2006 for school.

[62] The respondent and the two younger children moved to Toronto in the summer of 2007 into the Madawaska property.

[63] The respondent purchased the Madawaska property in her name alone in January 2007. The applicant did not sign the mortgage on this property. There is no evidence that the applicant had mail sent to this address or that he considered it his home.

[64] In fact, the applicant was renting a home in Thornhill at the time.

[65] The Madawaska property was in poor condition and the respondent hired and claims to have paid the applicant to perform repairs and renovations on the property. The work started in February 2007. The applicant performed the repairs and renovations with the assistance of his brother-in-law, the respondent’s brother.

[66] While performing the renovations, the respondent allowed the applicant to live at the Madawaska property. There was a four to six week overlap when the parties both stayed at the Madawaska property.

[67] The respondent maintains she did not share a bedroom with the applicant, and they were not living as a family. It is her evidence that she shared a makeshift bedroom with the parties’ son in the dining room.

[68] The applicant and the respondent’s brother then moved to another property, purchased by the parties’ eldest daughter, to perform repairs and renovations for her.

The Olive Avenue Property

[69] In February 2007, the eldest daughter bought a property municipally known as 88 Olive Avenue, Toronto, ON. This home is approximately two kilometres away from the Madawaska property.

[70] It was the eldest daughter’s evidence that she purchased the Olive Avenue property using money she was gifted by the applicant. She had intended to rent the property out and to use the rent to pay for the mortgage. The Olive property was to be an investment.

[71] The eldest daughter moved from student housing in Mississauga to the Madawaska property in May 2007. She confirmed that in June 2007, the respondent and the other siblings moved into the Madawaska property.

[72] The eldest daughter hired her father (the applicant) and her uncle (the respondent’s brother) to perform renovations at the Olive Avenue property.

[73] In early July 2007, the applicant and the respondent’s brother moved into Olive Avenue property to begin renovations. The respondent and the three children remained residing at the Madawaska property.

[74] Unfortunately, the applicant did not complete the renovations on the Olive Avenue property because of an incident of domestic violence against the respondent, which occurred in September 2007. As a result of the incident, the applicant was arrested and incarcerated for a lengthy period.

[75] As a result, the parties’ eldest daughter had to hire another company to complete the renovations on the Olive Avenue property.

[76] In approximately 2012, the eldest daughter brought an application before the court for a determination of whether a large sum of money, held in trust, should be released to her or whether any portion of it should be released to her father, the applicant in this case, as a resulting trust.

[77] She attempted to sell the property but learned that a “caution” had been placed on the property by the applicant. He claimed to have an interest in the property. The court ruled otherwise and ordered that the money held in trust from the sale should be released to her in its entirety.

[78] The court’s endorsement disposing of that litigation was included in the evidence for this trial. The decision was not appealed, and the applicant claims to have been unaware of the disposition on cross-examination.

The Applicant’s Incarceration

[79] There is no dispute that the applicant was jailed and then subject to a seven-year restraining order.

[80] The applicant denied that an incident occurred between him and the respondent in September 2007, however, his affidavit for this trial states that he expressed anger when he discovered infidelity. He acknowledges there was a knife involved and confirmed he was incarcerated for three months and then subject to a restraining order prohibiting him from contacting the respondent.

The Applicant’s Collaboration with the Respondent’s Brother

[81] There is no dispute that the applicant worked with his brother-in-law learning renovation skills to start a new life in Canada.

[82] There is no dispute that the applicant and his brother-in-law performed renovations to both the Madawaska property and the Olive Avenue property.

[83] Neither party called the brother-in-law as a witness at trial. This evidence would have been helpful to reconcile disparities in the parties’ evidence.

Life Events and Ancillary Considerations

[84] On the record before me, I make the following conclusions.

[85] There has been no evidence of the parties being affectionate towards one another from 2002 to 2007.

[86] There is no dispute that they slept in separate rooms in 2002 and on the applicant's visits to London.

[87] The parties did not share birthdays and did not exchange gifts.

[88] Apart from the Hawaii photo, there were no pictures presented of the family together.

[89] It is the respondent’s undisputed evidence that she did not do laundry, mend clothes, or perform any other domestic task for the applicant. She did not prepare meals specifically for him, although she does concede he joined the children and her for some meals that she prepared.

[90] The applicant did not tender evidence of joint bank statements, a will, or any other documentary evidence to support his position regarding finances.

[91] I conclude that the parties began living separate and apart in 2002. It is clear on the evidence before me that the respondent had the intention to live separate and apart from the applicant.

[92] Not only did the parties reside in two residences, but there was also a withdrawal of their matrimonial obligations. The parties’ conduct following 2002 was transactional. They did not share or participate in the other’s daily routines, celebrate special occasions together, or purchase gifts for one another.

[93] The applicant’s witnesses were not persuasive. One witness met the respondent in the Spring of 2007, having met the applicant first. The source of much of her evidence was the applicant.

[94] The other witness admitted in cross-examination that he was not sure of specific dates when his affidavit was sworn, the applicant assisted him in the recollection of his evidence and gave him a letter to help. This witness further admitted that he did not verify the information he was provided by the applicant or his brother-in-law.

[95] Having weighed all of the evidence presented at trial and considering the unique realities of the parties’ relationship, I find that the parties separated with no reasonable prospect of resuming cohabitation in December 2002.

The Applicant’s Request for a Declaration that the Madawaska Property is a Matrimonial Home

[96] The applicant’s affidavit dated March 26, 2014, states that the parties separated on February 10, 2007, not in September 2007 as he alleges at trial. The Madawaska property was purchased in January 2007 in the respondent’s name alone.

[97] I am not satisfied on the record before me that the applicant had an interest in the Madawaska property. The applicant has not met his burden of demonstrating he has an interest.

[98] The property was purchased in the name of the respondent. The applicant did not have a registered interest.

[99] There was no trust deed presented setting out a trust relationship, no tracing of funds used to purchase the property, no documentary evidence to establish an interest exists.

[100] If there were documents to support his position, the applicant would have produced them. Because he did not, an adverse inference can be drawn: see Drosophilinks Consulting Inc. et al. v. Canadian National Railway Company et al., 2010 ONSC 3576; Dawson v. Rexcraft Storage and Warehouse Inc..

[101] Not only has the applicant failed to establish, on a balance of probabilities, that he has an interest in the home, I have also found that the parties did not cohabit in the property as a “family residence”. It was not a residence around which their normal lives revolved.

[102] I conclude that the Madawaska property is not a matrimonial home as it does not satisfy the requirements of s. 18 of the FLA.

[103] At trial, the applicant agreed that if the property is found not to be a matrimonial home, the designation he placed on title could be lifted.

Orders

1. The date of separation for the purposes of divorce entitlement and spousal support, and the valuation date for the purposes of Part I of the FLA, is December 2002.
2. Pursuant to s. 23 of the FLA, the property municipally known as 63 Madawaska Avenue, North York, ON is not a matrimonial home.
3. The Land Registrar is hereby ordered and directed to remove the designation of matrimonial home from the title of the property municipally known at 63 Madawaska Avenue, North York, described as LT 288 PL 2385 TWP of North York; Toronto (N YORK), CITY OF TORONTO, being PIN 10034 – 0073 LT.

Costs

[104] The parties are strongly encouraged to settle costs. They should have meaningful discussion to resolve this issue.

[105] If they are unable to do so, they shall provide cost submissions in accordance with r. 24(19) of the Family Law Rules, O. Reg. 114/99. Cost submissions are to be sent to: FamilyTrialOffice-SCJ-Toronto@ontario.ca.

[106] If cost submissions are not received in accordance with the timelines set out in r. 24(19), costs shall be deemed to be settled.

Justice Kiran Sah
Released: February 19, 2025