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The Ontario Court of Appeal dismissed an appeal over the parties’ separation date, holding the trial judge made no palpable and overriding error and properly applied Kassabian.
On the balance of probabilities the parties did not permanently separate in January 2020; their conduct (texts, photos, tax filings, financial transfers, joint transactions, ongoing intimacy, third-party corroboration and the parties' own communications) demonstrates an ongoing marriage-like relationship with a final termination in June 2023, therefore the court fixes the date of separation as June 2023.
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On the balance of probabilities the parties permanently separated in September 2021, so the claim filed December 22, 2023 was brought after the two‑year limitation period in FLA s.198 and must be dismissed; correspondence between counsel in Sept–Dec 2023 did not constitute active family dispute resolution to suspend the limitation period. Alternatively, if limitation does not bar the claim, claimant is entitled only to 50% of the condominium's increased value during 2012–2021 and all other family property division is refused because equal division would be contrary to the parties' legitimate…
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On the balance of probabilities the parties separated on September 15, 2021; that separation date triggers the two‑year limitation under s.198(2)(b) of the Family Law Act and therefore the claimant's Part 5/6 claims are time-barred; the children's best interests favor stability so they remain at their Maple Ridge school; equal shared parenting time on the existing 2-2-5-5 schedule (with rotation swapped) is appropriate; claimant's income is reasonably imputed to $53,000 commencing June 1, 2025 (12 months after birth) for child support purposes, producing specified retroactive and prospective…
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The court found the parties separated on August 18, 2021, but held the respondent was estopped from relying on an earlier date, so the claim was not time-barred.
Family law trial after a 23-day hearing addressing separation date, property division, child support, spousal support, and s. 7 expenses.
The extension of time was denied because, although the appellant satisfied the non‑merits factors, the appeal lacked merit and was misconceived: the appropriate remedy for alleged incorrect separation date and alleged omissions is the pending Superior Court r.25(19) motion, and whatever its outcome will either render the appeal moot or substitute a different order for appeal; permitting parallel proceedings is inefficient and unjustified.
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The court held O.M. was substantially successful on costs, awarded ordinary costs in both proceedings, and refused special costs, uplift, and a FLA fine.
The Court of Appeal dismissed the appeal, upholding the trial judge’s finding that the parties separated on May 16, 2021; the trial judge correctly applied the law, reasonably weighed the evidence and credibility, and did not err in noting the limitation period as contextual background nor in proceeding by a focused two-day trial; no palpable and overriding error was shown.
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The Court of Appeal upheld the application judge: the separation agreement was properly set aside under s.56(4) FLA because the appellant failed to disclose a significant asset (the impending multi‑million dollar investment in PostBeyond) and it was unfair to hold the respondent to the bargain; the date of separation was a factual finding entitled to deference and was properly fixed at July 31, 2018; the appeal is dismissed.
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