Sagoo v. Sagoo, 2026 ONSC 4755

CITATION: Sagoo v. Sagoo, 2026 ONSC 4755

COURT FILE NO.: FC-24-59737

DATE: 2026/08/18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

UPNEET KAUR SAGOO

Applicant

– and –

RAJINDER SAGOO

Respondent

Gloria Ichim & Emmanuel Wingate, Counsel for the Applicant

Mark Grossman, Counsel for the Respondent

HEARD: June 15 – 19; 22 – 25; and July 17, 2026

BREITHAUPT SMITH J.

REASONS FOR JUDGMENT

Summary

[1] This focused trial is regarding the following questions, to be answered on a final basis:

1. Is the document purporting to be a Separation Agreement a validly constituted domestic contract pursuant to section 55 of the Family Law Act?

2. If the document is a valid Separation Agreement, is it enforceable or should it be set aside pursuant to section 56(4) of the Family Law Act?

3. If the Separation Agreement is valid and enforceable, and the parties reconciled for greater than ninety days following its effective date, what is the impact upon the underlying substantive financial issues?

4. When did the parties’ marriage break down on a final basis under section 8 of the Divorce Act and what is the “valuation date” under section 4 of the Family Law Act?

[2] Note that all the usual substantive issues arising in a matrimonial separation remain to be determined at another time, although obviously some of those will be guided by this decision.

[3] This focused trial was heard over ten days, from June 15 – 19; and June 22 – 25, 2026, with closing submissions on July 17, 2026. Both parties testified, together with the Applicant’s Mother and the Respondent’s sister. A myriad of exhibits were entered, including an omnibus Statement of Agreed Facts which appended evidence of electronic communications between the parties.

[4] For the balance of these reasons, I refer to the parties using their first names as was done throughout the evidence. Thus, the Applicant, Ms. Upneet Kaur Sagoo, is “Upneet” and the Respondent, Mr. Rajinder Sagoo, is “Rajinder.” The parties’ now-adult son is “Y.” As the validity of the document signed by the parties is in issue, I refer to it simply as “the purported agreement”.

[5] Upneet says that the purported agreement should be disregarded; Rajinder says that it should be upheld. Upneet says that, following periods of reconciliation, their marriage broke down on a final basis sometime in the month of September 2021; Rajinder says that they were separated as of late 2008 or early 2009. If the purported agreement is valid and enforceable, Upneet says that it is voided by operation of its own terms due to a subsequent reconciliation; Rajinder disagrees. If the purported agreement is valid and enforceable and was not voided by operation of its terms, Rajinder relies upon the spousal support waiver contained therein.

[6] For the reasons that follow:

1. I find that the purported agreement is not a valid and enforceable “domestic contract.”
2. As the purported agreement is invalid and unenforceable, it is not necessary to determine the impact of post-signature reconciliation upon its terms.
3. I find that the date upon which the parties’ marriage was irretrievably broken down is March 3, 2014, being the date that Mr. Sagoo left to work in Thailand. I find that the valuation date for property and support purposes is that same date.

Evidentiary Issues and Credibility

[7] There were many instances when hearsay slipped into the witnesses’ testimony due to the nature of the entry of the narrative. It is important that I confirm that I have not included any such inadmissible evidence in my determination of the issues.

[8] Upneet’s mother, Mrs. Pushpinder Kaur, testified first. Her evidence was of minimal utility because so much of it was hearsay, based on information that she received from her daughter. Further, she was completely aligned with her daughter and appeared to blame Rajinder for her daughter’s current living conditions.

[9] Regrettably, Upneet was unable to provide brief and cogent answers to questions put to her in chief or in cross-examination. I am mindful of the possibility that some of this presentation may be connected with the traumatic stress that she has endured, particularly arising from her housing instability, assaults perpetuated against her by other men during that time, and her unfortunate interactions with the criminal justice system. I have endeavoured to take a trauma-informed approach to assessing her evidence and thus have allowed for an understandable inability to recall specific dates and indeed the exact order of events as they may have taken place over the course of a lengthy period.

[10] Having said this, as I commented in my decision on the issue of spousal support, Upneet is obviously highly intelligent. Throughout the trial she was loquacious and articulate, and always immaculately presented. It is clear that Upneet was intentionally fabricating evidence to further her position at trial, rather than simply presenting her lived experience to the Court. For example, she intentionally misrepresented text messages of an affectionate nature as being from Rajinder when she knew they had been sent by the parties’ son using Rajinder’s device. She contradicted herself on critical issues and failed to produce supporting evidence while claiming that it was available. She engaged in lengthy non-responsive speeches in response to simple questions. I note that it is entirely likely that Upneet herself may believe the content of much of her narrative; that does not mean that it is reliable evidence upon which this Court can base a judgment.

[11] Rajinder generally testified in a more direct and calmer manner. However, as noted above, I am wary of placing too much emphasis on an individual’s presentation at trial. I note that many of the text message exchanges that he submitted as evidence were incomplete and selective. He did not provide clear evidence about the frequency and volume of the parties’ communications; however, he was candid about having sent sexually explicit WhatsApp messages and video content in 2020 and 2021. This candour, when compared with Upneet’s clear attempts to misrepresent facts to the Court, leads me to prefer Rajinder’s evidence regarding the details of their relationship wherever there is a discrepancy. In contrast, his evidence regarding the circumstances of signing the purported agreement changed at least three times. It is unclear whether that is reflective of a clear intention to mislead the court or whether it is the fragility of memory, but certainly it undercuts his position regarding the document’s validity and enforceability.

[12] A recitation of the evidence tendered through each witness, even if I were to limit it to the admissible evidence, would be unwieldy and unhelpful. Instead, I set out below my findings of fact, grouped by issue.

Question 1: Is the purported agreement a valid and enforceable “domestic contract?

The Law

[13] The operative legislation is the Family Law Act, R.S.O. 1990, c. F.3 (the “Act”). The following sections are applicable to this matter:

52 (1) Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children, but not the right to decision-making responsibility or parenting time with respect to their children; and

(d) any other matter in the settlement of their affairs.

(2) A provision in a marriage contract purporting to limit a spouse’s rights under Part II (Matrimonial Home) is unenforceable.[1]

53 (1) Two persons who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children, but not the right to decision-making responsibility or parenting time with respect to their children; and

(d) any other matter in the settlement of their affairs.

(2) If the parties to a cohabitation agreement marry each other, the agreement shall be deemed to be a marriage contract.

55 (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.

56 (1) In the determination of a matter respecting the education, moral training or decision-making responsibility or parenting time with respect to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

(1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract.

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

(7) Subsections (4), (5) and (6) apply despite any agreement to the contrary.

[14] As was recently confirmed by Madsen, J.A. in MacEwen v. Daljit, 2026 ONCA 398 (at paragraphs 61 – 67):

a. The law favours parties’ autonomy to reach their own settlements on the issues arising from separation.

b. However, courts recognize that the negotiations of domestic contracts take place in a unique and singularly challenging environment where emotions are charged and one or both parties may be vulnerable.

c. Therefore, section 56(4) (and specifically (b) thereto) was designed to operate protectively to address the concern that both parties fully understand their rights under the law, including the nature and consequences of the contract.

d. The “understanding” of the domestic contact is “broader than the common law grounds for setting aside a contract, such as non est factum or unconscionability” and includes understanding of the type of contract being entered into or specific terms contained in the contract.

e. Failure to understand the consequences of a domestic contract include an understanding of the practical and/or legal effects of the contract or one or more of its terms.

[15] Her Honour re-affirmed the two-stage analysis for setting aside a domestic contract first set out in LeVan v. LeVan, 2008 ONCA 388 and summarized in Virc v. Blair, 2014 ONCA 392:

52In LeVan, at para. 51, this court held that s. 56(4) comprises a two-stage analysis:

(i) Can the party seeking to set aside the agreement demonstrate that one or more of the s. 56(4) circumstances is engaged?

(ii) If so, is it appropriate for the court to exercise its discretion to set aside the agreement?

[16] The analysis of section 56(4) has been the subject of much judicial comment. Again, I rely upon Madsen, J.A.’s concise overview of the considerations at play, found at paragraphs 68 through 77 of MacEwen v. Daljit, which I cannot improve upon, and thus reproduce in their entirety below [internal citations omitted]:

68In applying the two-step approach to s. 56(4)(b), courts have considered factors that may be loosely grouped into three categories:

(1) Personal vulnerabilities

(2) External pressures

(3) Procedural safeguards

69Personal vulnerabilities may include:

(a) language barriers;

(b) significant mental or physical health challenges; and

(c) the level of “sophistication” of a party; and,

(d) power imbalances or other inequalities in the relationship.

70External pressures may include:

(a) pressure from a spouse or third party not to obtain ILA or resulting in inadequate or conflicted ILA;

(b) financial, professional or emotional pressure(s);

(c) perceived or actual time constraints; and

(d) any misrepresentation as to the nature, purpose, or consequences of the agreement.

71Procedural safeguards may include:

(a) full and frank disclosure of all relevant financial information;

(b) timely and comprehensive independent legal advice;

(c) other professional assistance, such as adequate translation or accounting assistance.

72None of these descriptions should be taken as exhaustive. All, however, may be relevant to a holistic determination of whether s. 56(4) is engaged as well as whether the court should exercise its discretion to set a domestic contract aside. The absence of the safeguards identified above will not necessarily be fatal to a domestic contract. Conversely, their presence will not necessarily immunize a contract against the impact of personal vulnerabilities and/or external pressures. The more balanced the process, the more comprehensive and timely the disclosure, and the more impartial the legal advice, the greater the likelihood of a domestic contract surviving judicial scrutiny.

73I would add the following: Inherent in the autonomy recognized by permitting parties to contract out of the legislative scheme through a domestic contract is an element of personal due diligence. That is, courts have recognized an obligation on a party to take reasonable steps, within their capacity and control, and recognizing any vulnerabilities or pressures as discussed above, to protect and advance their own interests.

74These proactive measures are not onerous, but include, at a minimum: fully and carefully reading the domestic contract before signing; clarifying terms where necessary; and taking steps to remedy known deficiencies in the domestic contract. A party who declines to take proactive measures or who chooses to sign a domestic contract despite awareness of flaws, may be unable to later resile from the contract.

75The relevant time to assess the impact of any asserted personal vulnerabilities, external factors, safeguards, and personal due diligence is during negotiations and at execution of the domestic contract, not at the time of the claim.

76Further, a court will consider the complexity and purpose of the domestic contract; any delays on the part of a party moving to set aside a domestic contract, and any reasons for same; whether part or all of the contract has already been implemented; and any benefits already realized by the claimant under the domestic contract.

77In applying both steps of the analysis set out in LeVan to the application of s. 56(4)(b), the court takes a contextual view, weighing the interrelationship of factors such as those listed above. The factors are not a “checklist” and will often overlap. What is required in each case is a careful and holistic assessment rooted in the “starting point” of respect for parties’ autonomy to reach their own agreements. This is a highly discretionary exercise entitled to significant deference.

The Evidence

[17] I base my findings regarding the purported agreement upon the following findings:

a. The effective date of the document is internally inconsistent and is inconsistent with the oral testimony. The document was signed in July of 2016, and the parties made attempts to back-date it. The evidence was not clear as to who signed on what date before the witnesses, other than the affirmation by the witness to Rajinder’s signature that the date of witnessing was on July 29, 2016.

b. The document speaks of a waiver of child support as of January 1, 2012, but the parties changed the date on the first and last pages of the document to line out “2012” and replace it with “2009.” Both parties initialed those changes; their witnesses did not do so.[2] The oral testimony from Rajinder was that he wanted the effective date to be 2009 because in that year he had filed his income taxes as “separated” and had advised his employer of the separation. Upneet did not provide cogent or credible testimony regarding the document and its circumstances.

c. The agreement states a date of separation of January 22, 2007, but neither party provided evidence supporting that as the actual date or providing any explanation as to why that date might have been chosen.

d. The document incorrectly recites material facts and the parties’ actual agreement on primary issues, such as the residency arrangements for the parties’ then-minor child, Y. Although Y was residing primarily with Rajinder outside of Canada, the agreement states that the parties shared equal parenting of him.

e. It is undisputed that the parties did not exchange financial disclosure prior to signing the purported agreement.

f. The purported agreement attempts to waive “any future child support claim regardless of a change in their financial circumstances.”

g. Both parties attested that they signed the purported agreement either without understanding its contents and legal impact or under duress. Upneet attested that she did not have legal advice and did not know what she was signing; Rajinder attested that he thought the document meant they were “legally separated” (there is no such concept under Canadian law) and that he signed it at Upneet’s insistence because he had limited time to renew Y’s travel documents, the forms for which Upneet was otherwise refusing to sign. Both parties confirmed that the purported agreement was signed first, and the child’s travel documents later.

h. There is no reliable evidence upon which the Court can rely regarding the exact circumstances of the signatures on the document. Neither party called the alleged witnesses to his or her signature, even though both persons were professionals at the time (one a lawyer and one a law clerk and commissioner of oaths).

i. Both parties speak English fluently. Other than what I would describe as circumstances arising from post-separation lifestyle choices, neither party was significantly disadvantaged as compared to the other. I find the parties to be equally sophisticated; in 2012, Upneet was operating her own business, and Rajinder was working in a management role. There is no further evidence of either party’s actual financial position at the time.

Discussion and Conclusions

[18] Simply stated, the purported agreement did not reflect reality and was signed by the parties while each was in a state of ignorance regarding the other’s financial situation at the time or the purported agreement’s long-term implications. Neither had the benefit of legal advice; each signed under a state akin to duress, as a result of being influenced by other external factors. I set it aside in its entirety pursuant to sections 55(1); 56(1.1); and 56(4)(a) – (c).

[19] As a result of my conclusions in this regard, it is not necessary to determine whether the spousal support release set out in the agreement is separately unenforceable.

Questions 2 & 3 RE: the Implications of the Purported Agreement

[20] Having concluded that the purported agreement is not a valid domestic contract, there is no need to consider whether to exercise my discretion to set it aside or how it may be impacted by post-signature reconciliation.

Question 4: What is the Date of Separation/Valuation Date?

The Law

[21] Section 8(1) of the Divorce Act authorizes the court to grant a divorce to spouses on the basis of a “breakdown of their marriage” which is defined, in part, on the basis that the spouses “have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceedings.” Subsection (3) expands upon that concept:

(3) For the purposes of paragraph (2)(a),

(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and

(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

[22] A determination of the date upon which one spouse intended to live separately from the other is required, and post-separation cohabitation for periods totalling more than ninety days resets the separation clock to the end of the last cohabitation period.

[23] The conclusion point of the marriage relationship is also central to the division of marital property under the Family Law Act. The “valuation date” is defined in section 4(1) in five ways; for our purposes, only one is applicable, namely “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.” Section 1(1) defines “cohabit” as “to live together in a conjugal relationship, whether within or outside marriage.”

[24] Again, Madsen J.A. provides a succinct yet thorough recitation of the law in Kassabian v. Marcarian, 2025 ONCA 239 [internal citations and footnotes omitted]:

17Determining when there is no reasonable prospect of resuming cohabitation requires a careful and objective weighing of a range of factors, including the intentions of the parties as demonstrated by their statements and actions. The central issue is “whether a reasonable person, knowing all the circumstances, would reasonably believe that the parties had a prospect of resuming cohabitation”. The identification of the valuation date will be “tied to that date when the marriage is irretrievably broken down and the resumption of cohabitation is not reasonably in the cards.”

18Just as the date of separation bears on the length of cohabitation for the purpose of determining spousal support under the Divorce Act, the valuation date directly affects the calculation of the limitation period set out in s. 7(3) of the Family Law Act, with respect to claims for the equalization of net family property. Such claims must be brought within six years after the spouses separate and there is no reasonable prospect that they will resume cohabitation. While, as will be seen below, consideration of the limitation period is not a factor in determining the date of separation itself, a party’s motivation for advancing a specific date may be relevant to an assessment of credibility. Courts are encouraged 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.

19Under both the Family Law Act and the Divorce Act, then, courts may be required to assess when the parties began living separate and apart. The same factors are relevant to determining this question and are discussed in the next section.

(2) Factors to Consider

20The leading case for determining spousal separation remains Oswell v. Oswell (1990), 1990 CanLII 6747 (ON HCJ), 74 O.R. (2d) 15 (H.C.J.), aff’d (1992) 1992 CanLII 7741 (ON CA), 12 O.R. (3d) 95 (C.A). Weiler J. (as she then was) set out factors that continue to frame the date of separation analysis. In the 35 years since that decision, additional considerations and guiding principles have expanded that analysis, but the law remains clear that this analysis is objective and fact driven. No one factor is determinative and a global weighing of all relevant factors is required.

24I would consolidate the list of relevant factors as follows. The categories necessarily overlap and are not exhaustive.

a. Nature of the relationship

b. Financial arrangements

c. Interaction with third parties

d. Formal steps taken to end the marriage or relationship

e. Any steps taken to resume cohabitation

25Nature of the relationship: This category considers how the parties relate to one another as spouses and intimate partners, emphasizing any changes at the alleged date of separation. Relevant factors may include whether the parties reside separately, either within the home, or in separate residences. If the parties reside separately, whether for defined periods or indefinitely, the reasons for living separately, and the presence (or absence) of personal items at the other party’s residence may all be considered.

26Also potentially relevant to the nature of the relationship are the presence or absence of sexual intimacy, including whether the parties maintain an “attitude of fidelity”; whether the parties are or have been romantically involved with others; arrangements for meal preparation, laundry, cleaning, shopping, and other household tasks; whether the parties continue to act as an intimate partnership, discussing family problems and issues, and making plans for the future; whether the parties share meals together; whether they attend social activities in the community or important events together such as weddings or funerals; whether the parties vacation together, with or without children; and whether the parties continue to exchange gifts, cards, or other tokens of affection.

27Financial arrangements: This category considers how the parties have organized themselves financially, again emphasizing changes at the alleged separation date. Factors include financial contributions towards the necessaries of life (shelter, food, clothing, etc.); sharing of assets, or whether steps have been taken to separate assets (such as, for example, severing a joint tenancy or separating joint bank accounts, credit cards, or safety deposit boxes); the status of spousal RRSP contributions or other joint investments; any new acquisition of property in joint names, joint mortgage renewals, or joint assumption of lease obligations; the use of shared financial advisors, accountants, or other financial professionals. Any changes to designations in a party’s last Will and Testament or changes in beneficiary designations may also be relevant.

28Interaction with third parties: This category considers how each party and the parties jointly have represented themselves and their relationship status to others, including extended family, friends, community members, professionals, businesses and government agencies, and on social media platforms. This could include whether one or both parties have told family members or friends that they are separated; whether they have continued to give gifts or cards to third parties jointly as a couple; whether they have advised accountants, financial advisors, real estate agents, for example that they are separated; what, if anything, has been represented to the children’s teachers, activity providers, or other third parties about a change of relationship status; how either or both parties have represented themselves in banking documents such as loan or mortgage applications, or whether they have represented themselves as separated or married on their income tax returns. Relationship status as presented by a party on social media may also be relevant.

29Formal steps taken to end the marriage/relationship: This category relates to whether a party has taken legal steps consistent with an intent to end the marriage/relationship, and could include having consulted a lawyer about divorce, meeting with a family mediator to discuss separation, or having had a draft separation agreement prepared.

30Any steps taken to resume cohabitation: This category is particularly relevant to the second part of the test under the Family Law Act, for the purpose of establishing the valuation date. Considerations may include whether the parties have been engaged in couples therapy, marriage counselling, mediation, or other efforts to meaningfully “put their relationship back together.” Related steps that may overlap with the other categories could include joint purchase of property, joint execution of a lease, new joint investments, or renewed travel as a romantic couple. As noted by Chappel J. in Al-Sajee, in assessing such steps to establish a reasonable prospect of resuming cohabitation and counter a proposed valuation date, there must be “more than wishful thinking on the part of either party”. Further, “[h]alf-hearted suggestions … will not necessarily move the valuation date forward”.

(3) Guiding Principles

31The following principles should guide the approach to the above factors:

a. True intent: In assessing a party’s intent to separate, it is the “true intent” and not the stated intent that is most salient. While a party may state that they wish to separate, their conduct may demonstrate otherwise.

b. Unilateral decision: The decision to separate does not require the agreement of the parties or a meeting of the minds. It is a decision often made by one party over the objection of the other. …: “[c]ontinuation of a relationship requires two people. Either can end a relationship without the consent of the other.”

c. Clear and unequivocal communication: While the decision to separate may be unilateral, “a clear statement or unequivocal act by one of the parties of their desire to terminate the relationship will be very relevant to whether the parties are living separate and apart.” The separating spouse must “take some definite steps to notify the world at large of [their] intentions.” One party cannot separate “in secret.” The communication by a spouse intending to separate, by words or actions, is to be viewed objectively.

d. Uniqueness: Each marriage or relationship is unique, as is each separation. Weighing the incidents of separation requires a careful assessment of the underlying characteristics of the marriage. For example, in Chan, McGee J. found that the purpose of the parties’ marriage after the children were raised was primarily to shelter and foster wealth. Consequently, evidence of changes in the financial union was more probative of separation than joint activity or companionship. Similarly, in Button v. Button, physical intimacy was not a significant feature of the marriage and thus its cessation did not weigh heavily in determining the date of separation. Separation should be assessed not against a stereotypical image of a marriage or conjugal relationship, but in the context of the lived marriage or relationship of the parties.

e. Separation is often a process: As the caselaw makes clear, separation for many couples is best described as a process rather than an event, with multiple smaller

steps and decisions leading to the conclusion that one or both parties have decided to separate within the meaning set out above. Yet, in accordance with the applicable legislation and governing caselaw, the task for the court is to determine, on a balance of probabilities, at what point—that is, on what day specifically— the requirements to establish the date of separation or valuation date have been made out. This is a process that requires careful attention and nuanced assessment by the trier of fact.

f. The factors are not a checklist: Related directly to the uniqueness of each relationship, courts must be cognizant that the factors above do not comprise a checklist, with an implied tabulation of factors for or against any alleged separation date. No one factor is determinative, and any factor considered must be weighed in the overall assessment of the uniqueness of each relationship, and of each separation: Al-Sajee, at para. 26. Judges are not obligated to advert to every possible factor, but must consider all relevant factors. It is possible individual factors may seem to contradict one another: Mathers v. Crowley, 2019 ONSC 5088, at para. 27.

g. Objective assessment: While each marriage/conjugal relationship is unique and the incidents of separation must be assessed in that specific context, the judicial assessment is necessarily objective. As stated in Strobele, at para. 30: “[a] fair determination of this issue requires that an objective eye be cast upon the unique circumstances of the couple.” Each marriage has its own dimensions and the court must look at the circumstances, objectively, to determine when it has irretrievably broken down.

[32] I make the following additional comments: any determination of the separation date or valuation date is necessarily, as can be clearly seen above, a determination of fact and credibility falling squarely within the province of the trial judge. Absent an extricable legal error, this determination attracts a high level of deference. Trial judges see and hear witnesses and are uniquely placed to undertake the nuanced assessments required to determine the applicable date.

[33] I note, also, that the court is not obligated to choose between the dates proposed by the parties.

The Evidence

[25] On the topic of the date of separation, and the impact of any potential reconciliation thereupon, I make the following evidentiary findings:

a. The parties have not been divorced and remain legally married to this day.

b. Although the parties separated initially in 2007, Rajinder felt that the relationship was at an end when, in late 2008 or early 2009, he learned that Upneet had engaged in a sexual relationship with another partner.

c. Between 2007 and 2009, Upneet spent the considerable majority of her time living elsewhere. For a period of some months, Upneet resided with Rajinder and their son while she was completing her post-secondary education. Rajinder supported her through this time.

d. Upneet had more than one alternate intimate relationship during and after 2009.

e. Upneet consulted with a family lawyer first in 2009 and again in 2012. On each occasion, she had a draft Separation Agreement prepared but neither document was signed at the time of its drafting, and it is unclear whether she presented either one to Rajinder.

f. At no time did Upneet provide any financial support for the parties’ son, nor did she participate in child-rearing post 2009, although she did visit occasionally and for a few hours at a time.

g. The parties last had physical intercourse on March 2 or 3, 2014, the day that Rajinder left to work in Thailand, taking the parties’ son with him with Upneet’s consent.

h. Neither party submitted supporting evidence of electronic transfers allegedly made from Rajinder to Upneet, and consequently I cannot determine whether such amounts were made regularly or with any frequency in a reliable manner. The amounts for which there is text message support fluctuate considerably both in size and in frequency.

i. At no time after 2009 did the parties share joint bank accounts or credit vehicles, nor did either party have any access to the other’s financial information.

j. Gifts given to Upneet between 2014 and 2019 when Rajinder and their son travelled to Canada to visit family were of modest value and were intended to be from the child. As such, they were not indications of a spousal relationship. The purchase of a puppy in 2017 by Rajinder was intended to provide emotional support to Upneet to support her emotional well-being and situation and was neither intended as a reconciliation gift nor as a replacement for his presence in furtherance of a spousal relationship.

k. When Rajinder and the parties’ son travelled to Canada to visit family, they stayed on average for three weeks, residing at Rajinder’s sister’s home. Of those periods, they visited Upneet on a small number of brief occasions, with visits lasting a few hours, each time. The only occasion on which the parties slept under the same roof after 2014 was in late 2017 during the moving of their personal belongings from two separate storage lockers in the Greater Toronto Area when they spent one night in the same room together with their then-teenage son. No cohabitation between Rajinder and Upneet took place during these visits.

l. Photographs taken of the parties, whether with or without their son, during the annual visits to Canada post-2014 are not determinative of the nature of the parties’ relationship.

m. When Rajinder and the parties’ son travelled to India in April of 2017, they visited Upneet’s grandmother and extended family for a couple of days; it was Y’s first trip to India, and they were welcomed as family. Mrs. Kaur attested that she did not want to share any of the details of her daughter’s tumultuous relationship situation with her extended family. Rajinder attested that he called Mrs. Kaur “Mom” out of respect, and that he calls his sister’s Mother-in-Law by the same term for the same reason as a part of his cultural understanding.

n. On August 7, 2017, the parties went to a jewelry store in the Toronto area which allows patrons to try on various costume rings from open display cabinets. Rajinder placed an order for an authentic version of a costume ring and Upneet wore the costume ring home from the store. Rajinder had purchased rings twice previously during the parties’ marriage: for their wedding and to commemorate their son’s birth. Rajinder later cancelled the order and has a store credit in his name in the amount of $495 at this time.

o. The parties referred to one another using the initial “J”, which was intended to indicate the word for “life.”

p. In multiple messages, Upneet speaks about the parties’ marriage in the past tense (e.g. “You did this to me when we were married… I’m not going to let you do this to me again.”).

q. Text messages from Rajinder’s account to Upneet professing love and the intention to spend time together were definitively from the parties’ son, despite Upneet’s attempt to convince the court otherwise.

r. In the Summer of 2017, Upneet asked Rajinder to help her to find rental accommodation and to support her applications to landlords. Rajinder obtained assistance of a realtor for this purpose. During the course of the real estate property search, Rajinder referred to Upneet as his wife in communication with the realtor. Within a few weeks, Upneet convinced Rajinder to sell his existing investment property and purchase a different one in which she could reside.

s. The property at 770 Brandenburg Boulevard in Waterloo (“770 Brandenburg”) was purchased with a closing date of November 22, 2017. Rajinder sold his condominium in the Greater Toronto Area. Upneet signed the Agreements of Purchase and Sale on his behalf.

t. Rajinder gave Upneet a limited Power of Attorney for the purpose of attending to the real estate transactions but in fact returned to Canada to sign the documentation when closing time came. This was not a requirement of the lender but was Rajinder’s intentional choice.

u. 770 Brandenburg was purchased in Rajinder’s name alone for the mutual benefit of the parties and their son in the sense that:

i. Rajinder would continue to have a Canadian investment property in lieu of his condominium;

ii. Upneet would have consistency in her living arrangements, which were precarious at that time, in exchange for maintaining the property; and

iii. their son would have a home in place when he was ready to attend university.

v. On November 25, 2017, Upneet confirmed her understanding that the business of 770 Brandenburg was as “a mutually beneficial professional undertaking” and belittled Rajinder for thinking that they were reconciling. On December 2, 2017, Upneet asked Rajinder for a written lease confirming her tenancy.

w. Rajinder paid the utilities at 770 Brandenburg for roughly two years, at which point (being 2019 at the latest), Upneet took over those payments. Rajinder paid Upneet’s bills for her telephone and remote security services on at least one occasion. Rajinder provided $2,000 to Upneet to help her with the expense of fixing her vehicle on one occasion. All of these appear to have taken place prior to late 2019 or early 2020.

x. The parties engaged in graphic online sex, including the exchange of messages, images and videos, until November 3, 2021.

Discussion and Conclusion

[26] Applying the five categories of consideration to the facts, the following picture emerges:

a. Nature of the relationship – The parties lived separately since 2007. Upneet engaged in at least two other sexual relationships commencing in 2008 or 2009. Rajinder testified that, from his perspective, the relationship ended when Upneet was unfaithful to him. When he left with the parties’ son for Thailand in 2014, Rajinder had no intention of ever returning to live in Canada. Upneet’s testimony was clear that she did not visit Rajinder and Y overseas, nor did she have any intention of doing so. I accept Rajinder’s evidence that, effectively, their sexual intercourse on the date of departure (or the prior night) represented one final time of intimacy concluding the relationship. Gifts given to Upneet after 2014 were intended to be from Y. On more than one occasion between 2017 and 2020, Upneet clearly indicated in text messages that she perceived the marriage to be concluded. This was not “squabbling” between spouses as Upneet’s counsel argued, but a contemporaneous statement of her frame of mind at the time. The mutual pet name “J” (short for “life”) is demonstrative of a continued connection, as was the purchase of the floor model costume ring, but these two alone are insufficient to displace the balance of probabilities regarding this category.

b. Financial arrangements – Rajinder supported Upneet in 2008/2009 while she completed her post-secondary education. Upneet never paid child support to Rajinder, nor did she contribute in any way to their son’s standard of living. The parties did not have knowledge of one another’s finances, let alone any involvement. There were no shared assets. Rajinder provided Upneet with some financial assistance on an as-needed basis when Upneet was homeless or otherwise struggling. Rajinder paid all costs associated with 770 Brandenburg, which provided Upneet with housing, from November of 2017 to late 2019. The parties’ finances were separate since at least 2009.

c. Interaction with third parties – Upneet was a casual and sporadic feature in the life of the family, which consisted of Rajinder as a single parent supported by his extended family. Upneet took on no meaningful caregiving role for Y after 2007 (Y was born in September of 2002). Rajinder’s use of the term “wife” in describing Upneet to the realtor was a statement of fact intended to facilitate communication, not a representation of the health of the parties’ marriage. Rajinder’s use of the term “Mom” in communication with Upneet’s mother was a term of respect, not endearment. Upneet’s mother testified that she was embarrassed to discuss her daughter’s relationship status with extended family in India. Both parties filed their income taxes as “separated;” Upneet did not provide exact evidence on this point, but Rajinder had been doing so since 2009. I place no weight on Upneet’s assertion that she described Rajinder and the health of their marriage in positive terms to shop clerks and other persons with whom she was casually connected. I ascribe no importance to the alleged reactions of restaurant staff to the family’s interactions when Rajinder and Y came to visit Canada.

d. Formal steps taken to end the marriage or relationship – Upneet obtained legal advice and directed the preparation of two draft separation agreements, one in 2009 and one in 2012. Eventually, a third version (which I have already found to be unenforceable) was signed by the parties in July of 2016. No further formal action to conclude the marriage was taken until Upneet commenced this Application in 2024.

e. Any steps taken to resume cohabitation – The parties did not cohabit after 2009. The purchase of 770 Brandenburg was as a mutually beneficial business arrangement and was not a prelude to reconciliation. When Rajinder returned to Canada to visit, the parties spent no more than a few hours together at a stretch, most of which were centered around a restaurant meal, usually in the presence of the parties’ son. There is no evidence of couples therapy, marriage counselling, mediation, or other efforts to meaningfully “put their relationship back together.” There were no periods of joint travel or discussions around long-term planning for a rekindling of the marital relationship. Not only is Upneet’s belief in reconciliation “wishful thinking,” I find that, at best, it is a currently held belief that she did not have at the relevant times (i.e. 2017 – 2021).

[27] While I acknowledge that this relationship was unique, I do not agree with submissions made on Upneet’s behalf that its nature was inherently and essentially that of a long-distance marriage. In fact, when all the factors are considered, it becomes clear that the only common thread across time was that the parties remained legally married. It is trite to say that the absence of a Divorce Order cannot be determinative of the continued existence of a marital relationship. If such were the case, we would have no need of the legislation, as a marriage would be automatically dissolved as of the date upon which one party decided that it was over. Having regard to the evidence presented at trial, viewed holistically and through the lens of the categories set out in Kassabian v. Marcarian, I find that the parties’ marriage concluded, with no reasonable prospect of reconciliation, on March 3, 2014.

Costs

[28] Rajinder sought to uphold the Separation Agreement, or at least certain terms therein; Upneet sought to set it aside. Rajinder’s position was that the parties separated in 2008 or 2009; Upneet maintained that the marriage continued until 2021. I have concluded that a completely different date, March 3, 2014, is the correct date. Overall, success on this trial of focused issues was divided. As success is the starting point in the cost analysis (Mattina v. Mattina, 2018 ONCA 867 at paragraph 13), I find that each party should bear his or her own costs.

Procedural Issue

[29] Because of the file management trajectory of this matter, which is scheduled for a Trial Management Conference next week, I released a summary endorsement setting out my conclusions regarding the questions raised herein in advance of these detailed reasons. Consequently, for clarity, any appeal period regarding my decision starts to run as of the date of release of these detailed reasons.

Final Order

[30] Final Order to issue:

1. The document purporting to be a Separation Agreement signed by the parties on or about July 29, 2016, being Exhibit 35 in this trial, is set aside in its entirety.

2. The date of separation pursuant to the Divorce Act and the valuation date pursuant to the Family Law Act is determined to be March 3, 2014. For clarity, the parties did not cohabit after that date for more than ninety (90) days.

3. Each party shall bear his or her own costs of this trial.

J. Breithaupt Smith J.

Released: August 18, 2026

CITATION: Sagoo v. Sagoo, 2026 ONSC 4755

COURT FILE NO.: FC-24-59737

DATE: 2026/08/18

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

UPNEET KAUR SAGOO

Applicant

– and –

RAJINDER SAGOO

Respondent

REASONS FOR JUDGMENT

J. Breithaupt Smith J.

Released: August 18, 2026

1Part II of the Family Law Act sets out particular rights regarding the matrimonial home, being the real estate in which either party holds an ownership interest and in which the parties resided on the date of separation. In summary form, the rights which cannot be abrogated by a marriage contract are: the right of possession (s. 19); the ability to register a designation of the matrimonial home on title to the property (s. 20); a prohibition on financially leveraging the property without both spouses’ written consent (s. 21); relief against forfeiture if a third party is realizing upon an encumbrance (s. 22); right to request exclusive possession (s. 24); and the right for a non-titled spouse to remain in the property for sixty days after the date of death of the titled spouse (s. 26).

2Because of the confusion regarding the timing of the signatures, the absence of the witness’ initials to significant changes is important in this case. It colours what the parties’ actual agreement was, and thus runs afoul of section 55(1) of the Family Law Act.