Court File and Parties

Court File No.: FS-22-31387

Date: July 28, 2025

Ontario Superior Court of Justice

Between:

NICOLE ANN ABATE, Applicant

– and –

SAMMY FRANKIE GARIBALDI, Respondent

Judgment: Trial of the Issue of Date of Separation

Before: J. R. Presser J.

Introduction

[1] This was a two-day trial of the issue of the parties' date of separation.

[2] The respondent, Sammy Frankie Garibaldi, says that he and the applicant, Nicole Ann Abate, separated in May of 2015 when the applicant moved out of the matrimonial home for a period of time. While the applicant subsequently moved back into the matrimonial home, according to the respondent, the parties never reconciled. He says they lived separate and apart under the same roof.

[3] The applicant says that she and the respondent reconciled when she moved back into the matrimonial home in July of 2015. Her position is that the parties then lived as a married couple (albeit an unhappily married couple) until April 3, 2022, when she told the respondent that she would be leaving after the end of their son's school year. The applicant then vacated the matrimonial home in August 2022.

[4] For the following reasons, I have concluded that the date of separation was April 3, 2022. The parties reconciled when the applicant returned to live in the matrimonial home in July 2015. While their relationship and marriage were challenging and somewhat atypical between 2015 and 2022, the evidence reveals no meaningful change in the parties' relationship before and after their brief separation summer of 2015 or until April of 2022. They continued to be a married couple until the applicant communicated her unequivocal intention to finally separate on April 3, 2022.

Background and Overview of the Evidence

[5] The parties met and started dating prior to September 2012.

[6] In anticipation of marriage, on September 12, 2012, they signed a marriage contract. They contracted to be separate as to property; waived any division of property except according to ownership, except as specified in the contract; and waived the right to equalization of net family property. The only exception to this contractual regime of no sharing, no division, and no equalization relates to the matrimonial home. Upon breakdown of the relationship, the respondent (who is the sole titled owner of the matrimonial home) would owe the applicant a payment equal to half the growth in value of the matrimonial home from the date of the marriage contract to the date of breakdown of the relationship.

[7] "Breakdown of the relationship," is defined in paragraph 2.1(a) of the marriage contract as follows:

(a) 'breakdown of the relationship' means the earliest of:

(i) the date on which the parties separate with no reasonable prospect that they will resume cohabitation;

(ii) the date on which one of the parties gives notice to the other in writing of an intention to live separate and apart;

(iii) the date of the dissolution of the parties' marriage;

(iv) the date of the annulment of the parties' marriage; or

(v) the date of death of either party.

[8] The parties agreed that upon a breakdown of the relationship, the marriage contract would take effect as a separation agreement. They undertook to "execute any documentation necessary to give effect to this Agreement as a separation agreement, including but not limited to a separation agreement incorporating the terms of this Agreement."

[9] Each party agrees that at all times before, during, and after their marriage and separation, they were aware of the provisions of the marriage contract.

[10] The applicant and the respondent were married on October 13, 2012. They lived together in the matrimonial home from the date of marriage. They have one child together, Mario, who was born on May 28, 2013.

[11] The applicant testified that after she married the respondent, she started to notice a different side of him. He was no longer as affectionate, he became more angry, and displayed anger toward her. The applicant's evidence is that the relationship was tumultuous, characterized by verbal, emotional, and physical abuse by the respondent.

[12] The respondent's evidence is that, for some time prior to separation, he and the applicant were not getting along. He says that they were having arguments so he often stayed away from the home, came home late when the applicant was in bed, and slept on the couch in the living room.

[13] In May of 2015, the applicant left the matrimonial home with the child and went to stay with her parents. She engaged a lawyer to explore the possibility of separation.

[14] On May 6, 2015, the applicant's lawyer wrote a letter to the respondent indicating that he had been retained by the applicant "with respect to implementing a legal separation." He asked the respondent to have his lawyer contact him (the applicant's lawyer) within 10 days, for the purpose of "initial exploratory discussion" of the terms of a separation agreement.

[15] On June 11, 2015, the applicant's lawyer wrote a second letter to the respondent, again asking the respondent to retain counsel with respect to negotiating the terms of the parties' separation. The lawyer indicated that if the respondent did not respond to the letter within 15 days, the applicant would have no alternative but to commence legal proceedings against the respondent.

[16] The respondent did not retain counsel in 2015. No separation agreement was executed between 2015 and 2022. The applicant did not commence family law proceedings at that time. The respondent also did not commence an application, nor did he bring an urgent motion for parenting time with the parties' child (who was residing with the applicant at the applicant's parents' home). There was apparently no further involvement of the lawyer retained by the applicant in 2015.

[17] The applicant's evidence is that while she was staying at her parents' home after May 2015, the respondent occasionally called her. She says that he apologized for his behaviour, and pleaded with her to return. According to the applicant, by mid-July 2015, after another round of apologies from the respondent and assurances that he would change, the applicant decided to return to the matrimonial home. She says she was hoping for a fresh start.

[18] The respondent's evidence is that, in June 2016, the applicant asked him if she could return. He says that the applicant told him that she was not getting along with her parents. According to the respondent, he agreed to allow the applicant to return to the matrimonial home because he was desperate to see his son. The respondent's evidence is that he and the applicant agreed to live separate and apart within the matrimonial home. They agreed that he would reside in the basement that he had recently renovated into a separate apartment with its own separate basement entrance, and that the applicant and the child would occupy the main floor.

[19] The applicant returned to reside in the matrimonial home. The date of her return is in dispute. The applicant says that she returned in mid-July 2015. The evidence of the applicant's mother, Cathie Abate, is that the applicant resided with her and her husband for approximately two and a half months between early May and mid-July 2015. The respondent's evidence is that the applicant returned to the matrimonial home in or around June 2016. The evidence of the respondent's mother, Lorraine Garibaldi, is that the applicant did not live in the matrimonial home for approximately one year commencing in May of 2015.

[20] After her return, the applicant and the child slept on the main floor of the matrimonial home. The respondent slept in the finished basement of the home.

[21] The applicant's evidence is that the respondent slept in the basement from the outset of their marriage, saying that he found it cooler there. Over time, according to the applicant, this physical separation in sleeping arrangements became a consistent pattern in the marriage. She also says that the respondent valued his personal space and autonomy; he frequently retreated to the basement and often using its walk-out feature to come and go without her knowledge, throughout the marriage.

[22] The respondent's position is that he could not have slept in the basement prior to the summer of 2015. This is because, the respondent says, the basement was only renovated during the time in 2015 when the applicant was living with her parents. The respondent's mother also testified that the basement was renovated during the time the applicant lived with her parents in 2015. The applicant's evidence is that the basement flooded on the day the parties' child was born, May 28, 2013, and was renovated immediately thereafter. She says that when she returned to the home in July 2015, the respondent was in the process of renovating the kitchen, not the basement. The respondent's witness, Ferruccio Rocco's, evidence was that he personally renovated the basement of the parties' matrimonial home, and believed that he had done so in 2008, although he was not certain of the year.

[23] The parties did not have a fixed parenting schedule for Mario, either by way of agreement or court order, between the disputed dates of separation. While Mario slept on the same floor of the house as his mother, he was free to move between floors at will. The respondent acknowledged in his testimony that both he and the applicant went up and downstairs within the house to take care of their son. But he maintained that they did not do so together at the same time.

[24] The respondent's evidence is that from the time the applicant vacated the matrimonial home in 2015, he cooked his own meals, or his mother brought meals over for him. He maintained that the parties did not have family meals together. However, the respondent acknowledged that he ate meals by himself in front of the TV prior to 2015. He also acknowledged that, after 2015, he cooked in both kitchens in the house – both in the basement and in the ground floor kitchens. The respondent's mother testified that when she cooked and brought meals for the respondent, she also did so for the applicant. At times, the respondent's mother made separate batches of food to accommodate the tastes of the applicant and the respondent.

[25] The respondent's evidence is that from the time the applicant vacated the matrimonial home in 2015, he did his own laundry. He filed photographs which show that the laundry machines in the matrimonial home are on a landing between the ground floor and the basement. As such, they are independently accessible from each separate living quarters. The applicant denied that the respondent did his own laundry after her return to the matrimonial home in 2015. She maintained that both parties did the shared laundry.

[26] The parties had sexual relations after the applicant returned to reside at the matrimonial home. The respondent maintained that the applicant put on lingerie and came down to the basement to seduce him. He testified that he "fell to the seducing."

[27] The applicant became pregnant but suffered a miscarriage on June 28, 2018. At trial, the respondent questioned whether the child was his. He testified that while he did not have specific knowledge of the applicant dating anyone else after 2015, he would not necessarily know. The respondent explained that the applicant would drop their son off with her parents and then do her own thing.

[28] The hospital miscarriage report indicates that this was a "planned pregnancy." The respondent denied that the applicant's pregnancy was planned, or at least that it was planned with him. The respondent's name is on the hospital report. He could not recall whether he dropped the applicant at the hospital, or whether she went there on her own. The respondent acknowledged that he went to the hospital the next day with the parties' child to collect the applicant.

[29] In the years between the disputed dates of separation, the applicant, the respondent, and the child attended several social events, family gatherings, vacations, activities, and outings together. The parties often drove to and from such events that took place in Ontario in separate cars.

[30] The respondent's position is that he and the applicant attended all of these events together because the applicant would not allow him to go anywhere or do anything with their child unless she was present. The respondent said that he went places and did things with the applicant because he wanted to be able to spend time with his child, not because he and the applicant were a couple. His position is that the parties drove separately because they were not a couple actually attending and participating in these events together.

[31] The applicant denies that she would not allow the respondent to have contact with the child unless she was present. She filed a text exchange between herself, and the respondent dated March 22-24, 2022, in which she asked the respondent to pick up the child and he agreed.

[32] The applicant's position is that she and the respondent attended all of these events together because the parties were together as a married couple. They participated in events, outings, and celebrations together as a couple and as a family. Her evidence is that she and the respondent frequently drove to events separately even before 2015 because the respondent often wanted to be able to come late and leave early. The applicant's position is that the respondent valued his independence and autonomy, as much before their brief separation in 2015 as after their reconciliation from July 2015 to April 2022.

[33] From 2015 on, both the applicant and the respondent declared on their income tax returns that they were separated. The applicant maintains that she indicated that she was separated on her tax returns because the respondent asked her to do so, not because the parties were separated. She says the respondent told her that he was having problems with the Canada Revenue Agency and asked her to help him by indicating separated status on her returns. She obliged. The respondent maintains that the parties declared that they were separated on the tax returns from 2015 onward because they were, in fact, separated. The applicant used her parents' home address for tax purposes both prior to, and after, 2015, including when she was residing in the matrimonial home.

[34] The applicant's evidence is that after she returned to the matrimonial home in July 2015, things between her and the respondent improved temporarily. However, according to the applicant, it did not take long for the respondent's yelling and anger to resume. She says she feared that the abuse would escalate, but she did her best to maintain a happy household.

[35] In the period prior to her date of separation, the applicant deposes, the verbal abuse from the respondent escalated to controlling and harassing behaviour, physical intimidation, and aggression. The applicant's evidence is that the respondent threw cereal boxes, full water bottles, and other items at her, invaded her personal space, and yelled aggressively.

[36] The applicant deposes that on April 3, 2022, she made it unequivocally clear to the respondent that she intended to leave the matrimonial home following the conclusion of their child's school year. For this reason, April 3, 2022 is the separation date in the applicant's view.

[37] According to the applicant, the respondent's angry and intimidating behaviours continued to escalate, making it clear to her that she could no longer remain in the matrimonial home. On August 16, 2022, the applicant left the matrimonial home with the child. They stayed at the applicant's parents' home. On August 22, 2022, the applicant commenced this family law proceeding.

[38] After the applicant moved out of the matrimonial home in August 2022, she never returned to live there.

[39] The parties made no efforts to reconcile after April 3, 2022. After this date, the parties did not attend any family gatherings, vacations, events, or celebrations together, nor share any family meals.

[40] This matter proceeded to a trial of the issue of the date of separation before me. The parties and their seven witnesses (three for the applicant and four for the respondent) filed their evidence in-chief by affidavit. The parties were cross-examined at trial. The respondent's three witnesses were also cross-examined at trial by counsel for the applicant. The applicant's four witnesses were not cross-examined at trial.

Issues

[41] The issues for my determination on this trial of an issue are:

A. Is the date of separation determined by the definition of "breakdown of the relationship" in the marriage contract, regardless of whether the parties reconciled after written notice of an intention to live separate and apart was given on May 6, 2015?

If the answer to A is no, I must move on to consider B.

B. Applying the law governing determination of the date of separation to the facts as I find them, when did the parties separate?

Analysis

A. Is the date of separation determined by the definition of "breakdown of the relationship" in the marriage contract, without regard to whether the parties reconciled after notice was given within the meaning of paragraph 2.1(a)(ii)?

1. Overview

[42] The respondent's position is that the marriage contract is determinative of the date of separation in the circumstances of this case. He notes that the contract specified that the breakdown of the relationship would occur upon one party giving the other notice in writing of an intention to live separate and apart (paragraph 2.1(a)(ii)). In the respondent's submission, the applicant gave that notice in her May 6, 2015 lawyer letter advising the respondent that she intended to implement a legal separation. The respondent argues that the May 6, 2015 letter clearly and unequivocally gave written notice of the applicant's intention to live separate and apart. As a result, under the terms of the contract, the parties' separation date is May 6, 2015, regardless of whether they subsequently reconciled or resumed marital cohabitation.

[43] The applicant's position is that the marriage contract is not determinative of the date of separation, without reference to reconciliation. She notes that the definition of breakdown of the relationship set out in paragraph 2.1(a)(ii) of the contract is silent as to the effect of reconciliation after notice has been given when determining the date of relationship breakdown. Accordingly, the applicant submits, a review of the marriage contract as a whole, in context, is required. Such review is necessary to determine the parties' intention with respect to establishing the date of relationship breakdown when there has been a reconciliation after notice was given. The applicant argues that such a review reveals that the parties did not intend notice in writing of an intention to live separate and apart to constitute relationship breakdown if there was a subsequent reconciliation.

[44] I have concluded that the contractual definition of breakdown of the relationship is not determinative of the parties' date of separation, without regard to whether they reconciled after notice was given. The contract is silent as to the effect of reconciliation after notice is given within the meaning of paragraph 2.1(a)(ii). As a result, I reviewed the contract in its entirety, in context, with a view to determining the parties' intention in relation to this issue. I came to the conclusion that, in contracting, the parties did not intend to be separated if they reconciled and then resumed marital cohabitation after notice was given. Moreover, it would be contrary to the spirit of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and public policy for reconciled spouses to be contractually stuck in a state of separation because notice of an intention to live separate and apart was previously given.

2. Law

[45] At common law, a separation agreement becomes void if the parties reconcile, subject to any provision in the separation agreement overriding the common law rule or implying that the parties' intent was for the terms of the separation agreement to be carried out notwithstanding a subsequent reconciliation: Krebs v. Cote, 2021 ONCA 467, 459 D.L.R. (4th) 730, at paras. 13, 20, citing Ernikos v. Ernikos, 2017 ONCA 347, 278 A.C.W.S. (3d) 107, at para. 11; Sydor v. Sydor, 178 O.A.C. 155, at para. 22; Bailey v. Bailey (1982), 37 O.R. (2d) 117; Bebenek v. Bebenek (1979), 24 O.R. (2d) 385.

[46] The same is not true of cohabitation agreements: Krebs, at para. 15. Cohabitation agreements, unlike separation agreements at common law, may survive a separation and subsequent reconciliation: Krebs, at paras. 15-22. This is because, generally speaking, separation agreements are no longer relevant if the parties reconcile (unless the language or intention of the parties indicates otherwise). By contrast, cohabitation agreements remain relevant to parties who have separated and then resume cohabitation. As the Court of Appeal explained in Krebs, at para. 20:

. . . the common law reconciliation rule remains a part of Canadian common law and continues to make some sense. Where the raison d'être of the agreement is separation and parties reconcile, the foundation for the separation agreement dissolves. I see no basis to extend this logic so as to void a cohabitation agreement following reconciliation of the parties. Under such circumstances, the reconciled parties have returned to the very state contemplated by the cohabitation agreement.

[47] There is, however, no presumption in favour of the continued validity of a cohabitation agreement following separation and reconciliation: Krebs, at para. 22. Rather, the continued applicability of a cohabitation agreement to the circumstances of the parties will depend on the interpretation of the agreement and the intention of the parties that are revealed through that interpretation: Krebs, at para. 22.

[48] Interpreting a cohabitation agreement will require the court to "ascertain the objective intent of the parties and the scope of their understanding, reading the contract as a whole, giving the words used their ordinary and grammatical meaning consistent with the surrounding circumstances known to the parties at the time of the formation of the contract": Krebs, at para. 23, citing Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 47-49.

[49] Indeed, "a cardinal rule of the construction of contracts" is that "the various parts of the contract are to be interpreted in the context of the intentions of the parties as evident from the contract as a whole": B.G. Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12, at pp. 23-24, cited in MacDougall v. MacDougall, (2005) 205 O.A.C. 216 (Ont. C.A.), at para. 21. When a court interprets a domestic contract, as set out in MacDougall, at para. 22, it must:

. . . search for an interpretation that is in accordance with the parties' intention at the time they entered into the contract. Where two interpretations are possible, the court should reject the one that would produce a result that the parties would not have reasonably expected at the time they entered into the contract. Instead, the court should favour an interpretation that promotes the reasonable expectations of the parties and that provides a sensible result in the family law context. To arrive at such an interpretation, the court must interpret the provision in the context of the entire contract, including the entirety of the section at issue, to discern the likely intention of the parties.

3. Application to this Case

[50] The parties entered into their contract in anticipation of marriage. Under paragraph 11.1 they acknowledged that it was a marriage contract entered into under section 52 of the Family Law Act ("FLA"). By its express terms, at paragraph 11.8, upon breakdown of the relationship the contract would take effect and be construed for all purposes as a separation agreement.

[51] It is clear from a plain language reading of the terms of this contract, that the parties intended it to bind them while married and cohabiting. It is equally clear that the parties intended it to bind them in the event of breakdown of the relationship – whether due to separation, divorce, annulment, or death. The agreement speaks to the intention of both parties to be separate as to property and debt during the marriage (see paras. 4, 7, 8), to waive the division of property except by ownership (see paras. 3, 4), to waive the equalization of net family property (except with respect to growth in the value of the matrimonial home as set out in the agreement) on relationship breakdown (see paras. 3.1, 4.1, 5) and to have the agreement survive the parties' death and be binding on their heirs (see para. 10). At paragraph 11.12, the parties agreed that if the marriage ends in divorce or annulment, all terms of the contract will survive and continue in full force and effect.

[52] I am satisfied, reading the contract as a whole, that the parties intended it to survive relationship breakdown as a separation agreement, and to survive subsequent reconciliation as an ongoing marriage contract.

[53] Regardless of whether the parties separated permanently on May 6, 2015, or separated temporarily on that date and then reconciled, their agreement survives and binds. The agreement is not voided by any reconciliation of the parties after separation. Examining the agreement as a whole reveals that the parties intended it to govern their affairs whether they were married and cohabiting, separated, divorced, or their marriage was dissolved by death or decree of nullity.

[54] What remains less clear is whether there has been a "breakdown of the relationship" as defined in paragraph 2.1(a)(ii) once one party gives written notice of an intention to live separate and apart, even if the parties subsequently reconcile. The parties give different and competing answers to this question. The respondent says that under para. 2.1(a)(ii), once notice is given, there has been a breakdown of the relationship even if the parties reconcile. The applicant says that reviewing the contract as a whole, in context, reveals that the parties did not intend notice under para. 2.1(a)(ii) to mean that their relationship was finally broken down if they subsequently reconciled.

[55] Paragraph 2.1(a)(ii) is silent on this issue. It makes no reference to the effects of reconciliation on relationship breakdown after a written intention to live separate and apart is communicated by one party to the other.

[56] Was the failure to include language relating to the effects of reconciliation in para. 2.1(a)(ii) an inadvertent oversight or an intentional omission? In contracting, did the parties intend to be finally separated once notice was given, even if they subsequently reconciled? Or did they mean for breakdown of the relationship to occur once notice was given for the last time with no further reconciliation or possibility of reconciliation?

[57] It falls to me to interpret the provision by reviewing the contract as a whole, in context, with a view to determining the parties' objective intention.

[58] Reviewing the contract in this way leads me to conclude that the parties did not intend written notice of separation to be final irrespective of a subsequent reconciliation. I come to this conclusion for the following four reasons.

[59] First, I consider the ordinary and grammatical meaning of the words "breakdown of the relationship" to be that the relationship is ruptured, broken, no longer a living, functioning conjugal relationship. It would not make sense to speak of a relationship being broken down when parties have made up, are reunited, and have resumed cohabiting as married spouses. A plain language reading of the words "breakdown of the relationship" leads me to conclude that the parties did not intend notice under para. 2.1(a)(ii) to constitute relationship breakdown for all time, without regard to whether they subsequently reconciled.

[60] Second, all of the events that trigger 'breakdown of the relationship' listed in para. 2.1(a), with the exception of 2.1(a)(ii), are events that end the parties' relationship with finality – that is, with no possibility of repair, reconciliation, or reunification.

[61] Paragraph 2.1(a) defines breakdown of the relationship as the earliest of: (i) the date on which the parties separate with no reasonable prospect that they will resume cohabitation; (iii) the date of the dissolution of the marriage; (iv) the date of the annulment of the marriage; or (v) the date of death of either party. Paragraph 2.1(a)(ii) stands alone as the only mechanism of ending the relationship that is not, on its express language, necessarily final. It defines the date of breakdown of the relationship as the date on which one party gives written notice to the other of an intention to live separate and apart. This allows for the possibility (as the respondent argues) that the relationship may have broken down because one party has given the other the requisite notice, even though the parties have then gone on to reconcile.

[62] In my view, it would not have made sense for the parties to have defined all mechanisms of relationship breakdown as final and left one that might not be final if the parties subsequently reconciled. There would be no reason to treat notice differently from the other triggers of relationship breakdown. The parties must have intended to define the triggers of relationship breakdown as events that irreparably and finally ruptured their relationship. Considered in the context of para. 2.1(a) as a whole, I conclude that the parties must have intended notice under para. 2.1(a)(ii) to constitute relationship breakdown if there was no subsequent reconciliation and no reasonable prospect of subsequent reconciliation. Put another way, the parties must have intended that the definition of breakdown of the relationship under para. 2.1(a)(ii) would no longer apply if there was notice of an intention to live separate and apart followed by reconciliation.

[63] Third, the provisions of the agreement dealing with the matrimonial home satisfy me that the parties cannot have intended to contract that they would be in a state of relationship breakdown (because notice was given) while reunited and living together in that home.

[64] Paragraph 5.3 of the agreement stipulates that, in the event of relationship breakdown, each party has the option to purchase the other party's interest in the matrimonial home. The respondent has the first option to purchase the home, written notice to be given within 30 days of the breakdown of the relationship. If the respondent declines to exercise the option within 30 days, the applicant has the option, written notice to be given within 60 days of the date of the breakdown of the relationship. The agreement further provides that, if neither party exercises the option to buy out the other party, the matrimonial home will be listed for sale immediately following the expiration of the 60-day period allowed for the parties to exercise their options (from the date of the breakdown of the relationship), with proceeds divided between the parties in accordance with their proportionate ownership interest after payment of disposition costs.

[65] In my view, para. 5.3 establishes that the parties' intention was for "breakdown of the relationship" to be final, and for the status of relationship breakdown not to obtain if they had reconciled. It would not make sense for the parties to have contractually mandated the sale of their home upon breakdown of their relationship if they had anticipated that "breakdown of their relationship" could include a time when they were reconciled and living together in the home after notice was given.

[66] In a similar vein, the agreement makes provision for the division of household contents and personal property upon breakdown of the relationship (para. 7). This further satisfies me that the parties must have intended breakdown of the relationship as defined in para. 2.1(a)(ii) to require that notice of intention to live separate and apart be final, and not to apply if they reconciled. It would not make sense for the parties to divide the contents of their matrimonial home because notice was given if they had reunited and were living together in the home and both making use of its contents together.

[67] Fourth and finally, the provisions of the agreement dealing with equalization of the growth in value of the matrimonial home satisfy me that the parties cannot have intended to contract that they would be in a state of relationship breakdown (because notice was given) while reunited and living together in that home. Paragraph 5.2 of the agreement establishes that the increase in the value of the matrimonial home from the date of the agreement to the date of relationship breakdown would be shared between the parties. Effectively, it means that as the sole titled owner of the matrimonial home, the respondent, would owe the applicant a payment equal to half the growth in the value of the home over the marriage, upon marriage breakdown. This is the only exception to the regime of separation as to property and waiver of equalization established in the agreement.

[68] If the parties could be in a state of breakdown of the relationship under para. 2.1(a)(ii) despite having reconciled, the respondent would be in a position to 'separate' solely to defeat the applicant's entitlement to share in continued growth in the value of the matrimonial home. He could do so through strategic separation (by notifying the applicant in writing of his intention to live separate and apart) followed by reconciliation, designed to nullify the applicant's claim to share in further increases in the value of the home.

[69] This cannot have been the parties' intention when they negotiated and signed the agreement. Paragraph 5.2 represents a shared intention for the applicant to share in the growth in the value of the home over the period of the marriage. There would have been no meeting of the minds between the parties to create a mechanism under which the respondent could strategically trigger a state of relationship breakdown, reconcile, and permanently defeat the applicant's contractual right to share in further growth in the value of the home after the date of the strategic "breakdown of the relationship."

[70] In sum, reviewing the words of para. 2.1(a)(ii) in their ordinary and grammatical meaning, in the context of the contract as a whole, I am satisfied that the parties did not intend to be in a permanent state of breakdown of their relationship if they reconciled after notice was given. The definition of "breakdown of the relationship" contained in para. 2.1(a)(ii) is not determinative of the parties' date of separation, irrespective of whether they reconciled after the applicant gave notice of her intention to live separate and apart by a lawyer letter on May 6, 2015. I must therefore go on to consider whether the parties did, in fact, reconcile after May 6, 2015, with a view to determining their date of separation.

[71] Before moving on to do so, I add that in my view, the interpretation of para. 2.1(a)(ii) advanced by the respondent would be contrary to the spirit of the Divorce Act and public policy. The Divorce Act contains several provisions aimed at encouraging reconciliation where appropriate (see, for example, s. 7.7(1) and s.10). This represents a legislative determination that, where appropriate, reconciliation is in the best interests of the spouses, the children of the marriage, and the public interest. It would violate the legislative intention to encourage reconciliation and public policy for reconciled spouses to be contractually stuck in a state of separation because notice of an intention to live separate and apart was previously given.

B. Applying the law governing determination of the date of separation to the facts, when did the parties separate?

1. Overview

[72] The applicant's position is that an application of the governing law to the evidence in this case reveals that the parties did not separate until April 3, 2022. She says that their marriage was always rocky and imperfect. There was no change in this regard after 2015 when she briefly left the respondent, then they reconciled, and she returned to the matrimonial home. The parties continued to live in the matrimonial home together after 2015, as they had done before. They slept in different parts of the house, in separate beds, after 2015, as they had done before. The parties and the respondent continued to have sexual relations. The parties continued to attend events, family gatherings, celebrations, and vacations together as a married couple. They often drove to events separately after 2015, as they had done before. The applicant and respondent had separate finances after 2015, as they had before, and as was contemplated in their marriage contract. It was only on April 3, 2022, when the applicant expressed an unequivocal intention to separate, that the parties separated.

[73] The respondent's position is that an application of the governing law to the evidence in this case reveals that the parties separated on May 6, 2015. The applicant left the matrimonial home prior to that date. She sent a lawyer's letter indicating her intention to pursue a legal separation on that date. She did not return to the matrimonial home for approximately one year. She then only did so because she was not getting along with her parents, on condition that the parties would live separate and apart under the same roof. After the applicant's return to the home, the parties slept in separate beds, in separate self-contained units that had locking doors. They did not eat meals together nor do their laundry together. The respondent acknowledges that he and the applicant continued to attend events, family gatherings, celebrations, and vacations together with their child. But he maintains that he only did so because the applicant would only allow him to spend time with the child if she was present. The respondent notes that he and the applicant drove to events and gatherings separately, which they did not do prior to May 2015. Both parties filed tax returns from 2015 onward indicating that they were separated. Although the applicant did not vacate the matrimonial home until August 2022, they had been separated since May 6, 2015.

[74] I have carefully considered the governing law and the evidence and come to the conclusion that the parties' date of separation is April 3, 2022. Although the applicant left the matrimonial home in May of 2015 with the intention of separating, the parties reconciled when she returned. They lived as a married couple, albeit in a strife-laden, unhappy, and somewhat atypical marriage, as they had done before May 2015 until the applicant communicated that she intended to finally separate from the respondent on April 3, 2022.

2. Credibility and Reliability

[75] The applicant, the respondent, and their witnesses filed affidavits in lieu of testifying in-chief. The parties and the respondent's three witnesses were cross-examined on their affidavits at this trial.

[76] The evidence of the parties was at odds in relation to many events and issues that are relevant to the determination of their date of separation. For this reason, my assessment of the credibility and reliability of their evidence is important.

[77] Despite the challenges associated with assessing credibility and reliability, the caselaw has identified a number of factors which may assist the court in doing so: Al-Sajee v. Tawfic, 2019 ONSC 3857, 309 A.C.W.S. (3d) 797, at para. 42. The following list of such factors is drawn from Al-Sajee, at para. 42:

(i) whether there were inconsistencies and weaknesses in the witness' evidence, such as internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the objective evidence (like documents, video or audio recordings), inconsistency between the witness' testimony and the testimony of other witnesses; or whether the witness' evidence internally consistent and/or consistent with the other evidence in the case;

(ii) whether the witness had an interest in the outcome of the case;

(iii) whether the witness had a motive to fabricate;

(iv) whether the witness had the ability to observe, recall, and communicate the matters about which they testified;

(v) whether the witness' evidence was inherently improbable and implausible;

(vi) whether the witness testified in a candid and straightforward manner, or whether the witness was evasive, strategic, hesitant, or biased; and

(vii) whether the witness was capable of making concessions or admissions that were not favourable to their position, or whether their evidence was self-serving.

[78] The court assessing credibility and reliability may consider a witness' demeanour but should exercise caution in doing so. Demeanour may be a product of culture, language skills, education, nerves, and a host of other factors that have no relationship with credibility and reliability. An honest witness may present poorly and a deceptive witness may present well: Al-Sajee, at para. 42, citing R. v. Norman, (1993), 68 O.A.C. 22, at para. 55; R. v. Jeng, 2004 BCCA 464, [2004] B.C.J. No. 1884, at paras. 53-54.

[79] I have carefully considered these factors in assessing the credibility and reliability of the parties' evidence. I will discuss the parties' credibility and reliability in more detail below in my analysis of the evidence and the issues. However, at this point, I will summarize my overall conclusions. I find that the applicant was, overall, credible and reliable. By contrast, I have serious concerns about the credibility and reliability of the respondent's evidence.

[80] The applicant presented as evasive in when cross-examined in relation to one issue. She filed a number of photographs of herself, the respondent, and their child together, between 2015 and 2022. Counsel for the respondent cross-examined her about the fact that there were no photos of events or trips that she and the respondent participated in alone, without the child. Counsel sought to elicit information about whether the applicant and the respondent ever went anywhere alone together after 2015. He was apparently seeking to elicit information that could be used to support an inference that the parties never went anywhere alone together because they were not together as a couple. The applicant did not answer these questions in a forthright manner. She would not directly admit that she and the respondent did go places or do things alone together between 2015 and 2022. Instead, she repeatedly said that after their son was born, the parties included the child in everything they did. She said that events and activities after May 6, 2015 involved all three of them.

[81] The applicant did answer truthfully in this line of cross-examination: she effectively acknowledged that she and the respondent never went anywhere alone together after May of 2015. But her manner of giving these answers was hesitant. She was reluctant to acknowledge a state of affairs that was not helpful to her position. This gave me reason to be cautious about accepting the applicant's evidence, and to carefully scrutinize it.

[82] That having been said, although she was reluctant to give direct answers that were harmful to her position in this line of questioning, the applicant did ultimately answer truthfully if indirectly.

[83] Apart from her evasiveness in answering this line of cross-examination, the applicant presented as forthcoming, candid, and straightforward.

[84] Perhaps more importantly, the applicant's evidence was consistent with much of the other evidence in the case. She testified that, after she returned to the matrimonial home in 2015, she did not restrict the respondent's access to the child or require that she be present for the respondent to have time with the child. This evidence was consistent with a text message exchange between the parties dated March 22, 2022, in which the applicant asked the respondent to pick the child up from school, and the respondent agreed.

[85] The applicant's evidence that she did not restrict the respondent's parenting time was also consistent with the evidence of the respondent's mother, Lorraine Garibaldi. Ms. Garibaldi testified that the child moved freely throughout the house between the main floor where his mother slept and the basement where his father slept. It was also consistent with the respondent's evidence that he and the applicant moved up and down between both of the floors in the house with their child (although the respondent maintained that he and the applicant were not doing this together as they each separately spent time with and cared for the child).

[86] The applicant's evidence that she did not restrict the respondent's parenting time with the child was also consistent with the respondent's evidence that he would cook meals for himself and the child in the kitchens on both floors of the house, depending on where the child was spending time.

[87] This evidence from Lorraine Garibaldi and the respondent about free movement of the child and the parents throughout the house with him contradicted the respondent's evidence that the doors between the basement and ground floor units were locked. It confirmed the applicant's evidence that they were not.

[88] Moreover, the applicant's evidence made sense. For example, the reason the applicant gave for remembering when the basement of the matrimonial home was renovated was detailed and plausible, consistent with common sense and experience. The parties disagreed as to when the basement of the matrimonial home was renovated. The date of the renovation was relevant because the applicant's evidence was that the respondent slept in the basement even before she vacated the matrimonial home in 2015. The respondent's evidence was that he could not have done so because the basement was not renovated until after the applicant vacated the matrimonial home in 2015.

[89] The applicant testified that the basement flooded on May 28, 2013, the day the parties' child was born. She said the basement renovation occurred shortly after that. This evidence had the ring of truth to it: a flood that occurred on the day one gave birth to one's first child would be highly memorable, and it would make sense to renovate in the wake of a flood. By contrast, the applicant gave no reason for renovating the basement in 2015, when he said he did, and no reason in particular for pegging the date of the renovation to that time.

[90] In addition, the evidence of the respondent's witness, Ferruccio Rocco, about the timing of the basement renovation was more consistent with the applicant's evidence than with that of the respondent. Mr. Rocco testified that he had renovated the parties' basement. He was not sure of when he did the renovation but thought it might have been in 2008. He was confident, however, that the renovation took place after a large flood throughout the city that affected the parties' basement. This evidence supported the applicant's evidence as to the timing of the renovation.

[91] Overall, despite some evasiveness in her answers to the one line of cross-examination noted above, I found the applicant's evidence to be credible and reliable.

[92] Turning to the evidence of the respondent, I found him to be frequently evasive and hostile. On many occasions during his cross-examination, the respondent was unwilling to give answers that were unfavourable to his position. On many occasions, the respondent did not answer the questions asked of him. For example, counsel for the applicant asked the respondent whether he had entered into a written agreement that set out parenting time after June of 2015. The respondent's answer was that he had no access to his son, that he had to get an attorney.

[93] Counsel for the applicant tried again, asking the respondent whether, during the time the applicant was back at her parents' home, he had applied to the court to have time with his son. The respondent answered that he had to seek counsel. Applicant's counsel then told the respondent that she was asking whether he took legal steps to have access to his son. He responded that he had to seek counsel. Later in the cross-examination, after the morning recess, counsel for the applicant returned to questioning the respondent about whether there was any parenting agreement put into place between 2015 and 2022. The applicant continued to respond that he had to seek counsel in order to seek contact with his son. After two or three more questions about whether there was a parenting agreement or order in 2015, applicant's counsel asked whether anything was put into writing about parenting. The respondent replied: 'I dunno. Do you have anything in writing? I don't.'

[94] After several more questions in cross-examination about whether the respondent brought any motions for parenting time between 2015 and 2022, the respondent replied: 'I had a lot of emotions, cause that's what it sounds like you're saying. I don't know about any motions.' At this point, the respondent's counsel intervened to say that he could assist. He advised that the respondent acknowledged that there were no motions brought by the respondent between 2015 and 2022. The respondent then agreed with his counsel.

[95] In my view, the respondent understood what he was being asked. The questions were clear, unambiguous, and repeated multiple times in different ways. The respondent was simply refusing to answer. He was choosing to be evasive and difficult. The respondent did not want to admit that he did not bring parenting motions because this was unhelpful to his position that he could not get access to the child unless he went on outings with the applicant.

[96] Moreover, the respondent contradicted himself in a number of material ways. He maintained that the doors between the basement and ground floor units of the matrimonial home were locked. But then testified that both he and the applicant moved up and down through the house with the child. They could not have done so if the doors had been locked.

[97] The respondent also testified that the applicant seduced him by putting on lingerie and coming down into the basement. She could not have done so if his doors were locked. He sought to downplay the importance of the ongoing sexual relations between the parties after 2015, in aid of his position that the parties had separated in 2015. He did so by suggesting that the applicant was the sexual instigator who seduced him, and that he was merely the passive recipient of her sexual advances who succumbed in spite of the dissolved state of their relationship. He said he "fell" to the seduction. However, if this were true and it were unwelcome as the respondent seemed to suggest, he could have locked the door to his basement unit. He did not do so.

[98] The respondent maintained that he was living separately in the basement and that he cooked his own separate meals but then acknowledged that he cooked in the kitchens on both floors and that he also cooked for his son.

[99] The respondent's evidence was also inconsistent with other evidence in the case. He testified that the applicant lived at her parents' home for approximately one year, commencing in early May of 2015. However, a number of the photos filed as exhibits depict the parties together with their son in 2015 and 2016. These are: a photo of the parties at Lake Ontario on August 15, 2015, a photo of the parties at Lake Ontario on September 17, 2015, a photo of preparing the child for his bath at the matrimonial home on October 12, 2015, photographs of playing together at the matrimonial home on January 1 and 22, 2016, and a photo of the parties at the Monster Truck Jam on January 17, 2016. There was no evidence that the parties spent time together with their son between when the applicant vacated the matrimonial home and when she returned. The photographs in and around the matrimonial home in October of 2015 and January of 2016 are particularly telling: the applicant must have returned to the matrimonial home by then to have been able to take those photographs. She must already have returned to the matrimonial home before August 15, 2015 when she, the respondent, and the child went to a playground and a beach on Lake Ontario. The respondent's evidence as to the time of the applicant's return, and the duration of her residing with her parents, cannot be correct.

[100] The respondent testified that he ate on his own – either what he cooked or what his mother cooked and brought for him – and that he and the applicant and the child did not eat family meals together. But the respondent's mother testified that when she prepared and brought meals, they were meals for all three of the applicant, respondent, and child. She even made separate meals to accommodate the tastes and preferences of the three of them. She did so right up until 2022. This suggests that the applicant did not eat meals prepared solely for him, alone.

[101] As noted, the respondent testified maintained that he was not permitted by the applicant to have parenting time with the child alone; that he could only spend time with the child if the applicant was present. However, the March 22, 2022 text exchange between the parties reveals that the applicant asked the respondent to pick the child up at school, and that he agreed. Clearly the applicant allowed the respondent to be alone with the child. When this text exchange was put to him, the respondent said that the parties would not have been communicating by text if they lived together. However, this text exchange occurred on a school day (the subject of the exchange was picking the child up at school) at 1:15 p.m. The applicant, who worked at a daycare, would have been at work on that day at that time.

[102] The respondent's evidence that the parties were texting as opposed to speaking to each other was an attempt to bolster his position that the parties lived separate and apart. It was incapable of doing so because the applicant would have been at work at the time, not at home to speak with the respondent in person. This response from the respondent was an attempt to divert attention away from independent evidence tending to establish that he did have time alone with his child, contrary to his stated position. It was an attempt to evade and confuse the court with evidence that did not correspond with the facts.

[103] I note also that in the March 22, 2022 text exchange, the respondent refers to the applicant as "my beautiful wife" and again as "my wife." This suggests that, as late as March 22, 2022, the respondent still considered the applicant to be his wife. It tends to contradict his position that the parties' marriage was completely dissolved as of early May 2015.

[104] In a similar vein, the respondent's mother testified that from what she could see, her son was a supportive husband to the applicant right up until 2022. This is evidence that tends to contradict the respondent's position that the parties separated in May 2015 and did not reconcile.

[105] In sum, I found the respondent to be an evasive witness who was not forthcoming. He had difficulty giving truthful answers if they would be unhelpful to his position. His evidence was often internally inconsistent as well as inconsistent with other evidence in the case, including independent evidence. I had serious concerns with the credibility and reliability of the respondent's evidence.

[106] For these reasons, where there were consequential discrepancies in the parties' evidence, I have generally preferred the evidence of the applicant over that of the respondent.

3. Law Relating to the Determination of the Date of Separation

[107] The fact that a marriage is unhappy or bad does not necessarily mean that the parties have separated: O'Brien v. O'Brien, 2013 ONSC 5750, 233 A.C.W.S. (3d) 169, at para. 51. To determine if or when parties separated, the court must assess both whether there was something that "might be found to be an event of separation," and "how the parties subsequently lived their lives": O'Brien, at para. 51.

[108] In the recent case of Kassabian v. Marcarian, 2025 ONCA 239, 2025 A.C.W.S. 1606, at paras. 20-30, the Court of Appeal for Ontario gave guidance as to the factors to be considered in assessing how the parties lived their lives, with a view to determining when spouses started living separate and apart with no reasonable prospect of reconciliation. Those factors may be summarized as follows:

(a) Nature of the relationship: this factor involves consideration of "how the parties relate to one another as spouses and intimate partners, emphasizing any changes at the alleged date of separation": Kassabian, at para. 25. It may include consideration of whether the parties reside separately, whether in the same home or in separate ones; the presence or absence of sexual intimacy; arrangements for domestic chores and responsibilities such as meal preparation, laundry, cleaning, shopping; whether the parties share meals together; whether they attend social gatherings, celebrations, milestones together; and whether they vacation together: Kassabian, at paras. 25-26.

(b) Financial arrangements: this factor involves consideration of "how the parties have organized themselves financially, again emphasizing changes at the alleged separation date": Kassabian, at para. 27. It may include consideration of financial contributions toward the costs of living; and whether steps have been taken to separate assets: Kassabian, at para. 27.

(c) Interaction with third parties: this factor involves consideration of "how each party and the parties jointly have represented themselves and their relationship status to others, including extended family, friends, community members . . . and government agencies. . . .": Kassabian, at para. 28. It may include consideration of what the parties have represented about their relationship status to their children's teachers and on their income tax returns: Kassabian, at para. 28.

(d) Formal steps taken to end the marriage: this factor involves consideration of "whether a party has taken legal steps consistent with an intent to end the marriage/relationship, and could include having consulted a lawyer . . . or having had a draft separation agreement prepared": Kassabian, at para. 29.

(e) Steps taken to resume cohabitation: this factor is particularly relevant to whether there is no reasonable prospect of reconciliation. It may include consideration of whether the parties have engaged in efforts to meaningfully "put their relationship back together": Kassabian, at para. 30, citing Torosantucci v. Torosantucci, (1991), 32 R.F.L. (3d) 202, at para. 14.

[109] These factors are not a checklist. No one factor is determinative: Kassabian, at para. 31. Each marriage is unique. So too is each separation. For this reason, "weighing the incidents of separation requires a careful assessment of the underlying characteristics of the marriage. . . Separation should be assessed not against a stereotypical image of a marriage . . . but in the context of the lived marriage or relationship of the parties": Kassabian, at para. 31. Accordingly, the factors considered by the court in determining the date of separation "must be weighed in the overall assessment of the uniqueness of each relationship, and of each separation": Kassabian, at para. 31.

[110] The decision to separate need not be mutual. Either party may unilaterally decide to separate, even over the objection of the other: Lachman v. Lachman, [1970] 3 O.R. 29; Kassabian, at para. 31. However, for the parties to be separated, at least one of them must have truly intended to separate. The court must strive to determine one or both parties' true intent, and not simply their stated intent at the time of the hearing: Oswell v. Oswell (1990), 74 O.R. (2d) 15 (H.C.J.), at para. 18.

[111] The judicial assessment of the date of separation is necessarily objective. While each marriage is unique, the court must look at the circumstances of each couple objectively to determine when the marriage "has irretrievably broken down": Kassabian, at para. 31.

[112] Courts are to exercise "extreme caution" in setting a valuation date as there is "a danger that parties will manipulate the date in order to improve their financial positions": Taylor v. Taylor, (1999), 5 R.F.L. (5th) 162, at para. 8, citing Newton v. Newton, (1995), 11 R.F.L. (4th) 251 (Ont. U.F.J.).

4. Application to this Case

[113] Under the relevant terms of their marriage contract, the breakdown of the parties' relationship would occur on the earliest of (i) the date on which they separated with no reasonable prospect that they would resume cohabitation or (ii) the date on which one of them gave written notice to the other of an intention to live separate and apart. I have already interpreted the second of these triggering events as including a requirement of no reasonable prospect that they would reconcile or resume cohabitation.

[114] I have considered the legal factors and principles outlined above and applied them to the facts as I have found them in this case. This led me to conclude, on an assessment of the unique characteristics of this marriage and this separation, objectively, that the date of breakdown of the relationship is April 3, 2022. I will explain.

(a) Nature of the relationship

[115] I accept the applicant's evidence that there was little change in the nature of the parties' relationship before and after their temporary separation in the summer of 2015.

[116] Both parties agree that they often slept in different beds from early on in their marriage. That they continued to do so after the applicant returned to the matrimonial home in 2015 did not represent a change from their status quo ante.

[117] Where the parties' evidence diverges on sleeping arrangements is with respect to where the respondent slept before the 2015 separation. The applicant says that the respondent slept in the basement before and after 2015. The respondent says that he slept on the couch in the living room before 2015. He says that he could not have slept in the basement before then because he only renovated the basement when the applicant was living with her parents in 2015. The respondent's point seems to be that I should infer that the parties separated in May 2015 because before then he slept somewhere temporary – the living room couch. Whereas after the applicant's return, he slept in his own separate, complete, self-contained basement apartment.

[118] I do not accept the respondent's evidence that the basement was only renovated in 2015. As explained, the applicant tied the date of the renovation to a flood that took place on the day the parties' son was born, May 28, 2013. This would have been memorable for her. She had a very specific reason to remember when the basement flood occurred.

[119] Mr. Rocco also tied the timing of the parties' basement renovation to a big flood. While he could not remember the date of the flood, the year he gave for it was 2008, well before 2015. That Mr. Rocco linked the timing of the renovation to the flood was confirmatory of the applicant's evidence.

[120] The applicant also testified that there were tenants living in the basement at some point prior to 2015, and she named them.

[121] The specificity of the applicant's evidence and her detailed recollection of when the renovation took place and why she remembered the date lend credibility to her account.

[122] By contrast, the respondent gave no specific reason for renovating the basement in 2015, or for why he recalled that timing. It could potentially be inferred that the respondent renovated the basement in anticipation of the respondent's return, so that the parties would have separate apartments in which to live in the same home.

[123] However, I find that this inference is not available on the respondent's evidence. His evidence was that the applicant lived with her parents for approximately a year, and that it was only at the end of that time, when she asked to return, that he agreed on condition that they live in the separate units. On the respondent's telling, he would not have known that the applicant was going to return to the matrimonial home in time for that to be what motivated him to renovate the basement.

[124] I have already rejected the respondent's timeline for the applicant's return to the matrimonial home. The photographs of the parties and their child together at Lake Ontario in August and September 2015, preparing the child for his bath at the matrimonial home on October 15, 2022, playing together at the matrimonial home on January 1 and 22, 2016, and at the Monster Truck Jam in January 2016 put the lie to the respondent's evidence that the applicant did not return home until approximately June or July of 2016. The independent evidence supports the applicant's evidence as to the timing of the parties' separation, namely that she left in early May 2015, and returned in mid-July of the same year. I consider it unlikely that the respondent would have had time to renovate the basement into a complete self-contained apartment, including kitchen and bathroom, in the two months during which the applicant was living at her parents' home.

[125] The evidence of both parties and the respondent's mother, outlined above, supports a conclusion that the parties and the child moved freely through the whole house. I accept that the basement was a separate self-contained unit. I also accept that there were doors capable of being locked that could close off the main floor and basement units from each other. However, the evidence of both parties and Ms. Garibaldi was that the child moved freely throughout the house, and that they moved with him. In addition, the respondent testified that the applicant came down into the basement when they engaged in sexual activity together (to seduce him in the respondent's version). I conclude that while the doors between the units could be locked, they were not.

[126] The respondent's evidence was that he cooked meals for himself and that his mother brought meals for him. He maintained that the parties did not eat meals as a family. However, the respondent acknowledged that he did cook meals for the parties' child. He also acknowledged that he cooked in the kitchens in both the main floor and basement units. He said he did not know whether the applicant ate what he cooked.

[127] The respondent's mother testified that she brought meals for all three of the applicant, the respondent, and the child. She even made split runs of certain dishes, like potato salad, to accommodate the tastes and preferences of the three.

[128] I am satisfied on this evidence that the applicant, the respondent, and the child did eat meals together as a family between 2015 and 2022. At least some of the time.

[129] I find that to the extent the parties did not eat meals together after their 2015 separation, this represented no change from before it. The respondent testified that even before 2015 – from the beginning of the marriage - he would eat meals on a tray in front of the TV. The evidence of both parties is that their relationship was marked by strife and conflict both before and after 2015. The respondent deposed that, before 2015, he often tried to avoid conflict with the applicant by staying away from the house and returning late, or by spending his time in his workshop.

[130] Considering the unique and specific circumstances of this marriage, I find that after 2015, as before, the parties sometimes ate meals together and sometimes did not. There was no change in the parties' pattern of eating meals together and apart after their 2015 separation.

[131] The respondent testified that he did his own laundry after 2015. The applicant's evidence is that both she and the respondent did the family's laundry after 2015. The laundry machines were located on a landing between the two units, where they were independently accessible from both units.

[132] I do not have a specific basis in the evidence to prefer the evidence of one party over that of the other in relation to their laundry arrangements after 2015. There is no other or independent evidence in relation to this issue. However, given my overall credibility findings in this case, I prefer the evidence of the applicant. I accept that both parties shared in doing the family's laundry.

[133] Between the applicant's return to the matrimonial home in 2015 and when she left in 2022, she, the respondent, and the child attended several social events, family gatherings, vacations, and did joint activities together. The applicant filed photographs of a number of such events, as follows:

(i) a photograph of the family on vacation in Montego Bay, Jamaica dated July 15, 2018;

(ii) photograph of a visit to Wasaga Beach on July 2, 2017;

(iii) photograph of a visit to Sherkston Beach on August 17, 2021;

(iv) photograph of a visit to the Monster Truck Jam on January 17, 2016;

(v) photographs of a visit to Lake Ontario on August 15, 2015 and September 17, 2015;

(vi) photographs of visits to the CNE on August 19, 22, and 27, 2016;

(vii) photographs of a visit to the respondent's grandmother at her nursing home on July 12, 2016;

(viii) photographs of playing together at the matrimonial home on January 1 and 22, 2016;

(ix) photographs of preparing the child for his bath at the matrimonial home on October 12, 2015;

(x) photograph of a visit to Downsview Park on September 4, 2021;

(xi) photograph of the family at the applicant's goddaughter's communion celebration on April 28, 2018;

(xii) a photograph of the respondent and the child at the applicant's parents' home during the celebration of her father's 65th birthday on June 9, 2018;

(xiii) photograph of a visit to Casa Loma on August 26, 2021;

(xiv) photograph of the parties and the child at "Big T's" 60th birthday party on November 13, 2019 at a banquet hall in Woodbridge;

(xv) photograph of the parties and the child celebrating New Year's Eve 2021-2022;

(xvi) photograph of the parties and the child celebrating the child's 6th birthday at the matrimonial home on June 3, 2019;

(xvii) photographs of the parties and the child celebrating the applicant's birthday on April 15, 2018; and

(xviii) a photograph of the parties and the child celebrating the respondent's birthday at Jolly II Italian Ristorante on September 1, 2020.

[134] The respondent admitted that all of the photographs were authentic. He admitted that he, the applicant and the child together attended all of the events, gatherings, celebrations, outings, and vacation that were depicted in the photographs. However, he maintained that he the applicant were not together as a couple on these occasions. Rather, according to the respondent, they were together because the applicant would not allow him to spend time with their son unless she was present. The respondent also maintained that the photographs represent the sum total of all of the outings and events the parties and the child participated in together between 2015 and 2022. He maintained that the applicant photographed every single event that all three of them attended together in that time.

[135] The applicant reluctantly acknowledged that the parties did not participate in any events or vacations alone together between 2015 and 2022; that they only did so with their son. However, she disagreed that she prevented the respondent from having parenting time with the child and only allowed him to be with the child if she was present.

[136] I accept the applicant's evidence in this regard. The evidence summarized above supports a conclusion that the respondent did have parenting time alone with the child between the applicant's return in July 2015 and August 2022. The respondent's own evidence is that he moved freely throughout the home with the child, but not when the applicant was with the child. This suggests that the respondent had parenting time alone with the child in the home.

[137] In addition, the text exchange between the parties on March 22, 2022 demonstrates that, as an apparently routine matter, the applicant asked the respondent to pick the child up from school and he agreed to do so. This is not the request of a parent who is preventing the other parent from having time alone with their child. The response of the respondent is not suggestive of any surprise, delight, or unusualness in the request.

[138] Moreover, the respondent did not commence family law proceedings at that time. He did not bring urgent motions, or any motions, to seek parenting time with the child. There may be a number of different reasons for which a parent does not bring urgent parenting motions. But it is certainly the case that not being deprived of parenting time is one of them.

[139] I conclude that the parties spent time together at events, outings, celebrations, and on vacation because they were together. Not because this was the only way the respondent could get to spend time with the child.

[140] The respondent's evidence is that the photographs filed represent every single one of the events the parties participated in together between 2015 and 2022. This is contradicted by the agreed statement of facts in this case, which establishes that the parties also took a trip to Niagara Falls in 2018 and to African Lion Safari in June 2021 together. It is also contradicted by the evidence of other witnesses in the case.

[141] The applicant's mother Cathie Abate, her sister Lucy Abate, and her friends Daniela Fiacco and Carla Silveira all depose that they hosted and attended various public events and family gatherings between 2015 and 2022. Their evidence is that the applicant and the respondent attended these events together, interacted as a couple, and presented themselves as a family unit. Ms. Fiacco owns the daycare centre where the applicant worked. The parties' child attended that daycare. Ms. Fiacco deposes that she attended the child's birthday parties throughout the years, both at the parties' home, and at her daycare centre. Her evidence is that the applicant and respondent presented themselves as a happy couple at these events. Ms. Silveira deposes that she attended the child's birthday parties at the applicant and respondent's home every year from 2018. She also attended a BBQ at the home on August 11, 2017; a playdate for her children with the parties' child at the home on September 1, 2018; and a 40th birthday celebration for Ms. Silveira at the daycare on January 26, 2019. Ms. Silveira's evidence is that the parties interacted as a couple at these events and presented themselves as a family. The applicant's mother deposes that the respondent attended their family Christmas every year from 2014 to 2021. He also attended the applicant's family Easter and Thanksgiving dinners from 2016 to 2021.

[142] The respondent did not cross-examine Cathie Abate, Lucy Abate, Daniela Fiacco, or Carla Silveira on their affidavit evidence.

[143] I find that while the photographs filed may represent most or almost all of the outings, activities, and trips the parties took with their child between 2015 and 2022, this family participated in many more gatherings and celebrations together in that time. All told, the number of events, outings, and celebrations this family participated in from 2015 to 2022 was "normal" for an intact family. Or at least it was "normal" for this family, given the strife between the parties and the respondent's need and desire for autonomy and independence.

[144] This finding is bolstered by the applicant's affidavit evidence that social outings with the respondent were infrequent, and that they rarely engaged in activities that felt typical of a "normal" family dynamic. It is also consistent with the applicant's evidence that the parties and their child did continue to celebrate milestones together as a family after 2015.

[145] Turning to the photographs of family outings, activities and the vacation between 2015 and 2022, I make the following observations. In most of the posed photographs, the applicant and the respondent are standing close to each other, often with their heads inclined toward each other. This body language suggests intimacy. It does not suggest that these are people who are separated, or who are being forced to spend time together only to facilitate parenting time with the child.

[146] The Sherkston Beach photo dated August 17, 2021, is a photo of the parties alone together, without the child. In this photo, the parties are standing close together and each has an arm around the back or waist of the other. In the April 28, 2018 photo of the parties at the applicant's goddaughter's communion, the parties each appear to have an arm around the other's back or waist. This is a posed group photo. The parties do not have to be standing next to each other in it, and yet they are. In the photo of New Year's Eve 2021-22, the parties and their child appear to be lying down on a couch together with their child between them. They are all physically close to each other and the parties' heads are inclined toward each other. They all appear to be laughing or smiling and having fun in a bonded moment as a family. In the photo of the child's sixth birthday celebration on June 3, 2019, the respondent is standing behind the applicant, who is seated. He is leaning down and in toward her and has his arm on the chair behind her shoulder, neck and head. All of these photographs show body language and positioning between the applicant and the respondent that is suggestive of closeness and intimacy.

[147] The October 15, 2012 photographs of the parties preparing the child for his bath have blacked out parts of the child's and the respondent's anatomies for privacy. However, it appears that both the child and the respondent were naked or nearly naked in anticipation of bath time on this occasion. The applicant took these photos. This suggests that the applicant and the respondent were, together, preparing the child for his bath at home. It also suggests a level of intimacy between the parties in which the respondent was prepared to be naked or nearly naked in front of the applicant, allowing her to photograph him in that state.

[148] Indeed, both parties' evidence is that they continued to be sexually intimate with each other after 2015. The respondent maintains that the applicant was the one who initiated sexual contact; that he didn't seek it out, but that he was seduced. I do not accept the respondent's evidence that he was a reluctant participant in sexual activity with the applicant after 2015. The body language between the parties in the photographs suggests that there was an ongoing and mutual connection of a physical nature between them. The evidence of Cathie Abate, Lucy Abate, Daniella Fiacco, and Carla Silveira is that the parties interacted as a happy and loving couple at numerous events after 2015.

[149] The undisputed evidence is that the applicant became pregnant and suffered a miscarriage in 2018. The hospital records relating to the miscarriage list the respondent's name under "finance." The hospital records indicate that this was a "planned pregnancy."

[150] I do not give much weight to this information in the hospital records. Beyond confirming that the applicant suffered a miscarriage in 2018, much of the information contained in the hospital records is hearsay. It is not clear who advised that this was a planned pregnancy, or who, at the hospital, charted that it was. It is therefore not possible to confirm the truth of this information. The respondent's name appears in the records, apparently in relation to private health insurance. It is not clear whether that is because the respondent was present at the ER during the miscarriage and gave his insurance information or whether it is because that was dated hospital file information.

[151] The respondent testified that he could not recall whether he took the applicant to the hospital when she was miscarrying and stayed with her there or not, or whether he went home to care for the parties' child. He did remember, however, that he picked her up from the hospital the next day. This evidence satisfies me that the respondent not only knew about the applicant's pregnancy and miscarriage (which he acknowledged in his evidence), but that he was involved in her care (as well as the care of the parties' child) in some way at the time.

[152] The respondent questioned whether he was the man responsible for the applicant's 2018 pregnancy. He maintained that the applicant could have been seeing other men when she dropped the parties' child at her parents' home and went out. In my view, the evidence favours a finding that the respondent was the father of the applicant's unborn child. There was no evidence whatsoever that the applicant was sexually involved with other men. Between working full-time, the demands of co-parenting the parties' young son, living in the same house as the respondent, and having an ongoing sexual relationship with him, it seems unlikely that the applicant could have had another sexual relationship and become pregnant without the respondent having any knowledge or evidence of it. The respondent's suggestion that the father could have been another man is speculation that is entirely without evidentiary foundation and is implausible in these circumstances.

[153] Regardless of whether the applicant became pregnant by another man or not (and I do not believe that she did), she had opportunities to become pregnant by the respondent. Both parties acknowledge that they had ongoing sexual contact after 2015. And the respondent was, in some way, involved in the applicant's care at least after the miscarriage, possibly also before and/or during. This contributes to my conclusion that the parties continued to be married between 2015 and 2022.

[154] The respondent's evidence is that he and the applicant always drove in separate cars to and from their outings, activities, and family gatherings after 2015. The applicant acknowledged that she and the respondent often drove to events in separate cars. However, her evidence was that this was as true before 2015 as after.

[155] The respondent's witnesses, his neighbours Ferruccio Rocco and Rose Rocco, each deposed that prior to April 2015, they personally observed the applicant and the respondent getting into the respondent's car to travel together with their son. Their evidence was that they never saw the parties in a car together after the applicant's return in 2015.

[156] In cross-examination, Ms. Rocco acknowledged that she had been employed as a teacher and worked during the day. She would only see the applicant and the respondent getting into their car or cars if she happened to be outside or looking out the window at the time, and before or after work or during the summers when she was not working. In cross-examination, Mr. Rocco was asked if he never saw the applicant, respondent and their child going out in the same car together after 2015. He responded that he did not remember. He acknowledged that he was not always looking out his window to see the comings and goings of the applicant and the respondent. He further acknowledged that they may have gone out together as a family when he was at work and could not see them doing so.

[157] The applicant's mother, Cathie Abate, deposes that throughout the parties' marriage, the respondent often drove separately from the applicant to and from family gatherings. Her evidence is that the respondent often arrived later and left earlier than most people.

[158] Ms. Abate further deposed that the respondent did not attend her family Christmas gatherings in 2012 and 2013, but that she and her husband still extended Christmas gifts to the respondent for those years. In 2014, Ms. Abate informed the respondent that he would not receive Christmas gifts if he did not attend. She deposes that the respondent then attended the family Christmas celebrations from 2014 to 2021. I infer from Ms. Abate's evidence not only that the applicant and the respondent often attended events in separate cars, but also that at times one would attend events without the other, even before 2015.

[159] I find that the applicant and the respondent sometimes drove to events in separate cars both before and after 2015. The respondent contradicted his own evidence that they always drove separately after 2015 when he testified that he picked the applicant up at the hospital after her miscarriage in 2018. The applicant's evidence that the parties often drove in separate cars throughout their marriage was confirmed by Cathie Abate's evidence. The evidence of the Roccos does not contradict the evidence of the applicant or her mother on this point. By their own admission, the Roccos did not observe all of the parties' comings and goings. They may have only happened to witness the parties driving together before 2015 and separately after 2015, but this does not mean that the parties did not drive separately before 2015 or together after that time. The Roccos' evidence speaks only to the occasions their work and life schedules permitted them to observe.

[160] In summary, the nature of the parties' relationship between 2015 and 2022 establishes objectively that they related to one another as spouses and intimate partners during that time. There were no meaningful changes in the nature of their relationship before and after their brief separation in 2015. The parties slept in separate beds in separate parts of the house after 2015, as they had done before. The parties sometimes ate meals together as a family, and sometimes did not, after 2015, as they had done before. Both parties shared in doing the family's laundry after 2015, as they had done before. The parties attended and participated in events, outings, gatherings, celebrations and a vacation as a family after 2015, as they had done before. They sometimes travelled to and from these events and celebrations in separate cars, and sometimes in the same car after 2015, as they had done before. The parties were sexually and physically intimate with each other after 2015, as they were before. The nature of the parties' relationship after their 2015 separation objectively supports a conclusion that they were not separated until the applicant told the respondent she was leaving him on April 3, 2022.

[161] The nature of the parties' relationship after April 3, 2022 stands in stark contrast to their relationship between 2015 and 2022. After April 3, 2022 (in August 2022), the applicant vacated the matrimonial home and did not return. The parties did not share further family meals. They did not attend any family gatherings, events, celebrations, or vacations together after April 2022. I conclude that the parties' date of separation was April 3, 2022.

(b) Financial Arrangements

[162] It is undisputed that the parties were separate as to finances both before and after their two-month separation in 2015. Indeed, they contracted to have separate finances in their marriage contract.

[163] I assume that after April 3, 2022, the parties continue to remain separate as to finances.

[164] I conclude that the parties' financial arrangements are a neutral factor in determining the date of separation in this case. As their financial arrangements were and remain the same since they were married, this factor cannot assist me in determining their date of separation.

(c) Interaction with Third Parties

[165] As noted, the evidence of the applicant's mother, her sister, Ms. Silveira, and Ms. Fiacco is that the parties attended numerous functions and events together, interacted as a couple, and presented themselves as a family unit. They attended events at their son's daycare together as an intact couple and family.

[166] The respondent's mother testified that from what she observed, her son was a supportive husband to the applicant right up until 2022.

[167] This evidence, together, suggests that the parties presented themselves to family, friends, and their child's daycare as a married couple between 2015 and 2022. This supports a conclusion that the parties did not separate in 2015.

[168] The same is not true of how the parties represented their status on their income tax returns. Both the applicant and the respondent declared that they were separated on their tax returns from 2015 on. The applicant had declared that she was married on her tax returns prior to 2014. She also always listed her parents' home address as her address on her tax returns.

[169] The applicant explains that she indicated separated status on her tax returns in 2015 and after because the respondent asked her to do so. She deposes that the respondent told her that he was having problems with CRA. The respondent denies that he asked the applicant to declare that she was separated. He maintains that both parties declared that they were separated because they were.

[170] There is no other or independent evidence supporting the applicant's evidence that the respondent was having problems with CRA, or that he asked her to report her status as separated as a result. In my view, the tax returns speak for themselves. They are evidence that tends toward a conclusion that the parties were separated after 2015.

(d) Formal Steps Taken to End the Marriage

[171] The applicant retained a lawyer to write to the respondent and explore negotiating the details of a separation agreement. The lawyer wrote to the respondent on May 6, 2015 and June 11, 2015.

[172] No further formal steps were taken to end the marriage in 2015, or until 2022.

[173] The applicant did not commence family law proceedings in 2015. Neither did the respondent. Despite his present complaints about being denied parenting time, the respondent did not bring parenting motions contemporaneously between May 2015 and August 2022.

[174] On April 3, 2022, the applicant communicated to the respondent that she intended to end the marriage, and that she would be vacating the matrimonial home after the child's school year was over. She did so, moving out of the home with the child in August 2022. She commenced this proceeding by application dated August 18, 2022.

[175] In my view, the history of the formal steps taken to end the marriage are consistent with a finding that the parties briefly separated in May of 2015. The applicant sent lawyer letters during that temporary separation. No further steps were taken because the parties decided to reconcile. It was only after the parties finally separated, with no prospect of reconciliation in 2022, that further formal steps to end the marriage were pursued.

[176] This is a factor that supports a conclusion that the parties' date of separation is April 3, 2022.

(e) Steps Taken to Resume Cohabitation

[177] For the foregoing reasons, I have found that after the applicant vacated the matrimonial home in May 2015, the parties reconciled. They succeeded in resuming cohabitation as a married couple for a period of seven years. Unlike the summer of 2015, when the applicant returned home after two months of separation, the parties have now been separated for almost three full years. Both parties maintain that there is no reasonable prospect of reconciliation.

Conclusion and Orders

[178] Considering the unique circumstances of the parties' marriage and all of the evidence, I concluded that their marriage did not irretrievably break down until 2022. Theirs was an unhappy and strife-laden marriage both before and after their separation in 2015. Some of their ways of being a married couple and a family both before and after 2015 do not correspond to many stereotypes of what it is to be married. The parties often did not sleep in the same bed in the same part of the house. They often drove to events, activities, and celebrations separately and the applicant even attended her family Christmas dinner without the applicant. They sometimes ate meals separately. But this was normal for them. Their ways of being a married couple and a family did not change when they resumed living in the matrimonial home in July 2015. They continued to have their own version of marriage after 2015, as they had before.

[179] All of the factors to be considered on a determination of whether and when spouses have separated point to a separation date of April 3, 2022. The one exception is the parties' indication of separated status on their income tax returns as of 2015. I have carefully considered this one indicator of separated status commencing in 2015 and come to the conclusion that it alone does not satisfy me that the parties' marriage had objectively irretrievably broken down at that time. Especially not when assessed alongside all the evidence indicating that the parties had reconciled and were continuing to cohabit as a married couple. The parties were separate as to finances and separate as to property. It may have made sense to them in that context to report to CRA that they were separated, while still in all other material respects living their lives as a married couple.

[180] It was only after April 3, 2022 that the parties truly and irrevocably separated.

[181] The parties' date of separation is declared to be April 3, 2022.

[182] The parties are strongly encouraged to come to an agreement as to the costs of this motion. If they are unable to do so, the applicant may file no more than three pages of costs submissions (double spaced, 12-point font) exclusive of her bill of costs and offers to settle, if any, within 15 days of the date of this judgment. The respondent may file responding costs submissions of no more than three pages (double spaced, 12-point font), exclusive of his bill of costs and offers to settle, if any, within 15 days of receipt of the applicant's costs submissions. There shall be no reply submissions.

J. R. Presser J.

Released: July 28, 2025