Husband says he parted ways with his former spouse six years before the date she alleged
The Ontario Court of Appeal upheld a trial judgment that a married couple separated without any possibility of reconciliation on May 16, 2021, as argued by the wife, not on Dec. 10, 2014, as alleged by the husband.
The parties in Kassabian v. Marcarian, 2025 ONCA 239, married in September 1998 in Toronto. They had two children and a difficult marriage. In a two-day trial, the only issue was their separation date.
The husband claimed they separated on Dec. 10, 2014, when they stopped sharing a bedroom. He said their conduct was consistent with that of a separated couple after that date. Specifically:
On the other hand, the wife argued that they parted ways on May 16, 2021, when she told him she wished to separate. Three weeks afterward, she sent an email stating she wanted to separate and would prepare her financial disclosure with May 16, 2021 as the separation date. His response did not deny this as their separation date.
The trial judge agreed with the wife that the couple separated on May 16, 2021. She considered the evidence and found the following factors relevant:
On appeal, the husband alleged that the trial judge issued insufficient reasons and made errors in her factual determinations and her application of the law to the facts.
The Court of Appeal for Ontario dismissed the appeal. The appeal court accepted that the trial judge’s reasons were brief and could be clearer about the findings of fact and credibility versus the recitation of evidence.
However, the appeal court found that the trial judge fully weighed the evidence – including the parties’ detailed affidavits, seven third-party affidavits, and out-of-court examination transcripts – before considering the wife’s evidence more reliable and credible.
The appeal court held that the trial judge addressed the factors deemed most relevant to the couple’s marriage and separation, correctly stated the law in the context of determining the separation date and valuation date under s. 4(1) of Ontario’s Family Law Act, 1990, and cited the applicable case law.
The appeal court ruled that the trial judge correctly noted that how the parties lived as a married couple would inform an assessment of whether and when they considered themselves separated.
The appeal court rejected the argument that the trial judge’s failure to refer to certain evidence – including adjusted contributions to a joint account after 2017, the wife’s consultation with a divorce coach instead of a therapist, and a less affectionate tone in birthday and anniversary cards – compromised her analysis.
The appeal court noted that the trial judge did not need to mention every piece of evidence in her reasons. The appeal court added that just because the trial judge could have weighed or interpreted the evidence differently, this did not mean she made a palpable and overriding error.
