Reasons for Decision
Court File No.: FS-22-00031925-0000
Date: 2025-04-11
Ontario Superior Court of Justice
Between:
Mei Yang, Applicant
and
Weidong Xie (a.k.a. Moses Su), Respondent
Applicant Counsel: Haiyun Wang
Respondent: Self-represented
Heard: October 1, 2 and 3, and 10 (in writing), 2024
Judge: A.P. Ramsay
Introduction
[1] The parties were married on August 6, 2014. There are no children of the marriage. The applicant initiated this Application seeking a divorce, equalization, support, freezing of assets, and sale of family property.
[2] The respondent filed an Answer seeking exclusive possession of the matrimonial home.
[3] The parties disagree on the date of separation.
[4] A threshold issue that will need to be determined is the parties’ date of separation.
A. Background
[5] The applicant, Mei Yang, has worked in labour jobs at restaurants and supermarkets.
[6] The respondent, Weidong Xie, also known as Moses Su, has a Master of Law from China. He is a former lawyer, judge of the Supreme Court in China, and entrepreneur.
[7] The applicant came to Canada in 2008. Her first husband passed away in January 2011. She met the respondent in China in February 2014, while visiting relatives. The two were introduced to each other by the respondent’s sister.
[8] On July 2, 2014, five months after the parties met, the respondent came to Canada on a visitor’s visa. The two married a month later in Toronto on August 6, 2014.
[9] This was the second marriage for both parties. They have no children together but do have children of their own. The applicant has a son who was living in Canada.
[10] On November 14, 2014, three months after the two got married, the applicant sponsored the respondent through the spousal sponsorship category and submitted a Permanent Resident Sponsor Application. The application was initially rejected by the Canadian government. The respondent sought a judicial review, and his application was ultimately approved in 2020.
B. Positions of the Parties
i. The Applicant
[11] The applicant asserts that the date of separation is June 20, 2022. She says the parties had a long-distance relationship after they met. She maintains that the respondent told her he was impotent after he came to Canada, and she tried to support him. The marriage lasted eight years, and the parties resided at several residences over those years. She did the domestic work. They had joint bank accounts, co-mingling their monies, an Airbnb in the respondent’s name but still a joint asset, and shared other common activities, including attending church.
[12] In December 2021, the respondent stopped providing money for family expenses and became verbally abusive. She asked for a divorce in February 2022, he apologized in March 2022, and their life went back to normal. The relationship ended on Father’s Day on June 20, 2022. She moved out of the matrimonial home on October 20, 2022.
ii. The Respondent
[13] The respondent asserts that the date of separation is December 31, 2014, four months after the two married. He says that the parties were not in love with each other. He visited relatives in Canada two months after meeting the applicant in China. The applicant arranged for a marriage certificate the following day, and they married on August 6, 2014. He soon found out that they “were not suitable to be husband and wife and [they] started living separately”. They were like roommates sharing living expenses.
[14] While his sponsorship application was underway, he investigated other ways to stay in Canada should the applicant ask for a divorce. In February 2015, he learned that he had been framed by Chinese officials. He obtained a Canadian work permit on September 29, 2015. His Permanent Resident Sponsor Application was rejected based on Interpol’s Red Notice.
[15] He applied for judicial review to the Federal Court, which was accepted.
C. Analysis
[16] Neither the Divorce Act, RSC 1985, c 3 (2nd Supp.) nor the Family Law Act, RSO 1990, c F.3 specify how to determine the date of separation. Under s. 8(1) of the Divorce Act, the court may grant a divorce if there has been a breakdown of the marriage. The Act specifies several conditions which may establish a breakdown of the marriage including, as set out in s. 8(2)(a), where “the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding”. The Act also specifies how to compute time to calculate the period of separation. Pursuant to s. 8(3)(a), “spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other”.
[17] Section 4(1) of the Family Law Act defines the “valuation date” as the earliest of five dates, one of which is the "date the spouses separate and there is no reasonable prospect that they will resume cohabitation."
[18] At common law, the date of separation may be established when there is an unequivocal act by a separating spouse indicating that he or she wishes to separate without possibility of reconciliation: O’Brien v. O’Brien, 2013 ONSC 5750, para 52. The question is whether a reasonable person, knowing all the circumstances, would reasonably believe that the parties had a prospect of resuming cohabitation: Warren v. Warren, 2019 ONSC 1751, paras 6-7.
[19] The determination of whether there is a reasonable prospect of resuming cohabitation, or reconciliation, is based on the intention of the parties: Warren, at para. 6. Each marriage is different, and the court must evaluate a particular marriage, taking into account all of the circumstances, including the objective factors set out below, to determine if a reasonable person would conclude that the parties have separated with no reasonable prospect of resuming cohabitation: Warren, at para. 7; Zahelova v. Wiley, 2020 ONSC 6990, paras 21-22. As noted by Hood J. in Zahelova, no one factor takes precedence, no certain combination of factors is necessary, and no majority of factors will decide the issue.
[20] In assessing the possibility of reconciliation, the court must determine whether, considering the intention of the parties, a reasonable person, knowing all the circumstances, would believe that the parties had a prospect of resuming cohabitation: Tsarynny v. Topchiy, 2025 ONCA 175, para 19.
[21] In determining the intention of the parties, the court must consider a range of objective factors, in addition to the stated intentions of the parties: Tsarynny, at para. 19; O’Brien, at paras. 54, 61; and Warren, at paras. 6-7; Zahelova, at para. 21.
[22] The objective factors include:
a) Physical separation, including occupying separate bedrooms, maintaining separate residences and the reasons for maintaining separate residences.
b) Withdrawing from the matrimonial obligation with the intent of destroying the matrimonial consortium.
c) Presence or absence of sexual intimacy, although acts of intercourse do not necessarily imply periods of cohabitation with reconciliation as their purpose.
d) Communication between the spouses and discussion of family problems as well as planning for the future.
e) Joint social activities, celebrating social occasions together, gifts, helping each other through difficult times, vacations together.
f) The relationship and conduct of each of them toward members of their respective families and their friends, and how the friends and families behaved towards the parties.
g) 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.
h) How the parties referred to themselves in documents, including income tax returns, and to friends and families.
i) Steps taken towards the legal termination of their relationship.
j) Meal patterns, including eating meals together and the performance of household tasks, including washing clothes, cleaning, and shopping.
k) Efforts to resume cohabitation (mediation, counselling, property purchase or lease, “meaningful discussions…as to if, how or when their marriage might be put back together”): O’Brien, at paras. 54, 61; Warren, at para. 7.
D. Credibility
[23] This case turns on the credibility of the parties. The court found the applicant to be more credible than the respondent. Some of the reasons are below.
[24] The respondent’s affidavit enumerated the factors considered by the court in determining the date of separation, borrowing the headings from the cases, while often neglecting to specifically respond to or challenge the applicant’s evidence, and transitioning, at times, between the first person and the third person. His affidavit also contained inadmissible evidence, opinion evidence, case law and submissions.
[25] Some of the issues in the respondent’s affidavit were rehabilitated when he testified at trial. The respondent focused on the “list” of factors and making general statements, “cataloguing” examples, under the different headings, pulled from the case law, to prove that the parties were separated. When he deviated from the list and was forced to answer questions, his evidence at trial was at times contradicted by the documentary evidence. In some instances, he crossed the divide from witness to decider, offering his own legal conclusions about certain evidence before the court.
[26] The respondent’s evidence was often implausible in the face of documentary and other corroborating evidence. The respondent says the parties separated in December 2014, which is a month after the applicant applied to sponsor him to Canada. His application was denied in August 2016. The respondent appealed and obtained his permanent status in 2020. In his affidavit sworn on November 15, 2016, the respondent indicated that he was married to the applicant. This is almost two years beyond the date that he indicates that the parties separated. In his affidavit filed before the Federal Court dated November 13, 2016, the respondent stated:
- I am married to Yang Mei, born January 30, 1962 and I have two children, my biological son, Xie Cangqiong, born July 1987, and Wang Fei, my step-son, born July 1987.
[27] The affidavit was never put to the respondent on cross-examination. However, at trial, the respondent admitted that he had reviewed the applicant’s affidavit. He did not challenge the affidavit. On cross-examination, the respondent admitted that he never advised Immigration Canada that he and the applicant had separated.
[28] The applicant contends that the respondent used her to obtain his immigration status in Canada.
[29] The applicant contends that she learned that the respondent’s real motive was to obtain his immigration status through fraud, and it was only after he obtained his immigration status that he started to pick on her and to point out things that were wrong. There is evidence to support the applicant’s version of events. There is of course the big lie. From the respondent’s evidence at trial, he lied to the applicant about being impotent.
[30] The respondent’s own evidence supports that conclusion. He says that he investigated how to continue to stay in Canada in 2014 and prepared a Plan B if the applicant withdrew the sponsorship application.
[31] He claimed:
I have maintained no physical contact; the separation of our monies; the separation of our ID documents, and the precious personal belongings, just to avoid any risks, just in case.
[32] His Plan B was to claim refugee status. He says he contacted the Chinese Democratic Party to accumulate evidence to claim refugee status after divorce. He testified that he also retained a lawyer to provide guidance.
[33] There is no evidence that the applicant was aware of the respondent’s Plan B. Given the lengths which the respondent himself admits that he went through to remain in Canada, it is implausible that he would have separated from the applicant only four months after they were married, and one month after she applied to sponsor him in Canada through the spousal sponsorship program.
[34] At trial, the respondent admitted to transferring money in a joint bank account and admitted that he took over paying the donations to the church for both parties in 2019 when the applicant became ill. He has provided no good explanation as to why a roommate would be co-mingling funds, jointly donating to the church, for years, not just in 2019, or why they would have any communication about the rental property (Airbnb) if all their dealings were separate and he had no communications with the applicant.
[35] On cross-examination, the respondent admitted that he wrote a letter to the applicant dated August 1, 2022. The letter deals with the sale of property, the repayment of a loan, and the division of property as of June 2022. The respondent has provided no explanation as to why the parties would be communicating about resolving issues with respect to property and division of assets in 2022, if they had separated seven and a half years before. Counsel for the applicant took him through the letter, which he acknowledged, in which he stated, in part:
June the 20th is the date both parties formally agree to divorce. It is just a formality to determine when the divorce is de facto and essential. The property to be divided between the parties is the property calculated as of June the 20th. Each party will be responsible for their own expenses, claims, and debts incurred by each party after that date. After June the 20th, the relationship between the two parties is that they are ordinary friends, and they each is completely single. They must respect each other’s privacy and own affairs.
In addition to calculating and summarizing the money we are aware of, we also need to start organizing each other’s belongings. Still based on the principle of giving you the priority, you take what you want.
E. Conclusion
[93] The respondent’s position that they were separated in December 2014, six months after the parties were married, is not supported by the evidence. The parties’ lack of sexual intimacy was due to the respondent’s lie to the applicant, and, by his own admission, because she wanted to have sexual relations with him.
[94] The parties lived together for eight years. They had joint bank accounts and a joint financial venture. The applicant prepared meals for the respondent, corroborated by electronic communications between the parties, acknowledged by the respondent at trial, until 2022. The evidence indicates that they communicated about mealtimes and were doing so in 2022, and, by the respondent’s own admission, would eat meals together. The applicant cooked and cleaned for the respondent. She visited his family in Ottawa.
[95] The parties’ primary social activity appeared to be attending church; they attended church together, were baptized on the same day and for years, jointly made offerings to the church until 2021. Their pastor knew them as a couple.
[96] The parties also ran an Airbnb and communicated with each other about this joint enterprise, as corroborated by the electronic communications in evidence.
[97] From the perspective of others, the parties were a couple as evidenced by the testimony of the pastor of their church who knew them as a couple attending church until just before COVID emerged, which is as late as 2019, five years beyond the date that the respondent says that they separated.
[98] The respondent’s own letter to the applicant dated August 1, 2022, indicated the parties agreed to divorce on June 20, 2022, and that, "The Property to be divided between the parties is the property calculated as of June the 20th...", also refers to the June 20, 2022, date.
[99] The respondent is well educated, a former lawyer and judge. The court agrees with the applicant’s submission that the fact that he did not inform the immigration authority of his alleged separation at any point before his sponsorship was accepted is a good indicator that the parties had not been separated as he alleges.
F. Disposition
[100] For the reasons above, the court finds that the date of separation is June 20, 2022.
G. Costs
[101] If the parties are not able to agree on costs, the court will consider written submissions based on the following schedule:
i. The applicant shall deliver costs submissions, including a Bill of Costs and a Costs Outline, no later than 30 days from the date of this decision.
ii. The respondent shall deliver his responding submissions and supporting materials (mentioned below) within 30 days thereafter.
iii. There shall be no reply submissions.
[102] The costs submissions, excluding the Costs Outline, Bill of Costs, and any supporting case law, must be no longer than five pages, double-spaced.
[103] Any authority referred to may be hyperlinked to a free online source for decisions.
[104] The costs submissions should be provided in Word format and emailed to my judicial assistant. All submissions and supporting materials on costs must also be uploaded in Case Center to the trial bundle.
A.P. Ramsay
Released: April 11, 2025