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--- mb:chebu_c._touwa_2025_mbkb_65 [2026/08/05 01:48] – created victorzhou
+++ mb:chebu_c._touwa_2025_mbkb_65 [2026/08/07 04:12] (current) – [VI. DECISION] victorzhou
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 ====== Chebu c. Touwa, 2025 MBKB 65 (CanLII) ======
-* Source: [[https://www.canlii.org/fr/mb/mbkb/doc/2025/2025mbkb65/2025mbkb65.html|CanLII]]
+Source: [[https://www.canlii.org/fr/mb/mbkb/doc/2025/2025mbkb65/2025mbkb65.html|CanLII]]
+----
 Date: 20250513 \\
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 [8] On April 2, 2025, I heard arguments from the respondent's lawyer and after a break, I gave my decision verbally. I declared that the date of separation was established as December 3, 2022. I indicated that written reasons would follow. These are my reasons.
+==== II. LEGISLATIVE BACKGROUND AND JURISPRUDENCE ====
+[9] The parties agree on the applicable law to be applied to the disputed issue.
+[10] S.16 of the //The Family Property Act//, CCSM c F25 provides:
+<blockquote>
+(a) Closing and valuation dates
+In any accounting under section 15, the closing date for the inclusion of assets and liabilities in the accounting, and the valuation date for each asset and liability shall be as the spouses or common-law partners may agree and, in the absence of agreement,
+  * (a) the date when the spouses or common-law partners last cohabited with each other; or
+  * (b) where the spouses or common-law partners continue to cohabit with each other, the date either of them makes an application to the court under Part III for an accounting of assets.
+</blockquote>
+[11] According to the legal test "[TRANSLATED] the last day of cohabitation" was set by Mr. Justice Kurisko of the District  Court of Ontario in //**Molodowich v. Penttinen**//, 1980 CanLII 1537 (ON HCJ), [1980] O.J. No. 1904 ("**//Molodowich**//"). The seven factors in **//Molodowich//** were summarized in **//Hunt v. Canada (Citizenship and Immigration)//**, 2024 CanLII 138069 (CA CISR) (para. 8) as follows:
+<blockquote>
+**//The law concerning conjugal relationships//**
+Neither the //Immigration Refugee Protection Act// nor the //Regulations// define conjugal relationship. In //M. v. H.// the Supreme Court of Canada adopted the seven characteristics of a conjugal relationship as set out in //Molodowich//. They are:
+  * i) Shared shelter: whether the partners live together in the same home as a couple;
+  * ii) Sexual and personal behaviour: whether the partners’ relationship is exclusive, committed, and evidenced by emotional, intellectual, and physical interaction;
+  * iii) Services: whether household and other family-type responsibilities are shared, and whether there is evidence of mutual assistance, especially in time of need;
+  * iv) Social activities: whether the partners share time together or participate in leisure activities together, and whether they have relationships or interaction with each other’s respective families;
+  * v) Economic support: whether the partners are financially interdependent or dependent, and whether they have, to some extent, joined their financial affairs or arranged them to reflect their ongoing relationship;
+  * vi) Children: the partners’ attitude and conduct towards children;
+  * vii) Societal perception of the couple: whether the partners are treated or perceived by the community as a couple.
+</blockquote>
+[12] The Court has found the evidence reliable in context of the //**Molodowich**// factors which are thus made objective.
+[13] The respond has submitted that the evidence on Ms. Chebu's intention to separate in 2019, found in certain documents, must have significant weight. I agree with counsel for the respondent that the intention of a party to separate is a relevant factor in the determination of the date of separation but more important than a party's intention is their conduct in consideration of all the circumstances which must be considered.
+[14] The jurisprudence has establish the significance of a party's intention to separate from their spouse. The principles associated with a party's intention to separate are the following (italics added):
+  * (a) Whether they had the intention to separate and demonstrate convincingly, by their conduct, that this particular intention was carried out (**//Sanderson v. Russell//**, 1979 CanLII 2048 (ON CA); and
+  * (b) Whether they had the intention to separate and communicated this intention to their partner in a coherent manner with the desire to separate (**//Field v. McLaren//**, 2009 MBQB 118)
+[15] The separation noted in documents filed with government departments  is thus relevant to the issue in this case but the intentions of the parties cannot be considered in a vacuum.
+==== III. FACTS ====
+[16] The respondent's case relied on his two written affidavits, Ms. Tchikantio's affidavit (the respondent's older sister) and Mr. Ndonko's affidavit (Mr. Touwa's godfather of marriage). The claimant filed three affidavits and was also cross-examined.
+[17] Despite the respondent's filed response declaring a separation date of December 1, 2022 (never revised), the respondent maintains that the date of separation should be January 1, 2019 in accordance with a letter written by Ms. Chebu dated December 11, 2018 to the department of Immigration. He highlights certain alleged facts, including but not limited to the following:
+  * (a) The claimant has changed her financial habits to be more independent since 2019, including her declaration to the CRA and her possession of cash and savings accounts;
+  * (b) The claimant has refused to reveal the source of certain bank funds;
+  * %%(c)%% During a four-way meeting in September 2023, the claimant refused to disclose how she accumulated the debts on her credit card that she claimed as family debt as of December 1, 2022;
+  * (d) The claimant has changed how she manages household chores since 2018;
+  * (e) The claimant has planned to sponsor her mother's immigration to Canada in the process of separation;
+  * (f) The respondent's declarations as described by Ms. Tchikantio; and
+  * (g) The individual discussions between the parties including the godfather of marriage, Mr. Ndonko, who advised them to settle their issues.
+[18] The facts above are contested. The respondent highlighted that the parties continued to live like a couple until December 2022. Additionally, she highlights multiple alleged facts, including but not limited to the following:
+  * (a) They always maintained independent finances;
+  * (b) The parties confirmed that the beginning of the hearing that they always had separate bank accounts. The court notes that there was no evidence that their practices concerning their accounts changed in 2018 or later;
+  * %%(c)%% The respondent and the claimant were not happy with each other and the claimant was very frustrated that the respondent would not support the claimant's mother if she came to Canada. This was an area which caused significant tension but the parties did not communicate to each other that they would separate;
+  * (d) In October 2018, the respondent sent a letter to Immigration in which he wrote: "[TRANSLATED] I vehemently denounce the false and slanderous letter which was sent to you and dated September 24, 2018 from Montreal (first incongruity) by the woman who remains my spouse until further notice..."
+  * (e) The parties had issues in the marriage but the claimant denied that she told the respondent or Ms. Tchikantio that she decided to separate from the respondent;
+  * (f) Ms. Tchikantio described a discussion between herself and Ms. Chebu. She affirmed that the discussion took place when Ms. Tchikantio was in Cameroon. Under cross-examination, she affirmed that it was possible that she was mistaken and it was possible that the visit took place in 2019;
+  * (g) A copy of the claimant's passport confirms that she travelled to Cameroon in 2019 and not in 2018. Ms. Tchikantio affirmed that Ms. Chebu did not want to continue to live in the marriage with Mr. Touwa and that she "[TRANSLATED] was firm in her decision and threatened to cause him hill which would make him regret this decision", in reference to Mr. Touwa's choice to refuse to support Ms. Chebu's sponsorship of her mother. Her solemn declaration confirms that after this visit, the claimant left the home without resolving the conflict and she never heard more of her since then;
+  * (h) Ms. Chebu discussed her marriage issues with Ms. Tchikantio and her desire to separate but this never materialized;
+  * (i) The parties met in September 2023 and agreed to exchange their comparative declarations using a date of separation of December 1, 2022;
+  * (j) The respondent's affidavit confirms that he did not know that the claimant wanted to separate in 2019 and it was only in 2023 when he tried to determine the claimant's intentions. Thus, in 2023 when the parties and their lawyers were discussing the disclosure of the 2019 documents sent to Immigration, the respondent did not know that the claimant had separated from him at that time (for ex.: application in 2023 for documents filed in 2019);
+  * (k) In the affidavit filed in 2025, the respondent did not specify a date of separation, supposedly while waiting for the claimant to inform him of the date. He affirmed: "[TRANSLATED] because it is the claimant who separated from me by refusing to specify a logical date."
+  * (l) At the hearing, the respondent highlighted that some of the claimant's documents were not provided to show a date of separation earlier than 2022. He argues that I should draw an inference against him;
+  * (m) The evidence does not support the proposition that the claimant refused the respondent's requests;
+  * (n) Between 2022 and 2023, the parties exchanged financial documents using a date of separation of December 1, 2022. In 2023, Mr. Touwa testify that he did not have any more documents related to the CRA or immigration; and
+  * (o) Additionally, it is surprising that the respondent insists that the claimant provide certain relevant documents to the court yet the respondent has never filed a notice to compel disclosure of those documents for this hearing, nor a notice for preliminary interrogatories in which he could have asked questions and ask for disclosure of the documents.
+==== IV. ANALYSIS ====
+[19] The respondent asks the court to find that Ms. Chebu is a not credible, that her explanations do not make sense and that she has exaggerated and lied to conceal the truth that she has had the intention to separate since 2018.
+[20] He submits that the date of separation is obvious given the Ms. Chebu's letter and declaration to the CRA and Immigration. I find that the reasoning be applied to Ms. Chebu's written documents and also be applied to Mr. Touwa's sworn statements where he gave the court a date of separation of December 3, 2022 in a response to the court filed in January 2023. He explained under oath that he thought that the declaration gave a date of physical separation only and not the date of separation in the marriage.
+[21] Mr. Touwa's suggestion that he believed that indicating December 3, 2022 in his response signified only a physical date of separation, and not the actual date of separation in the marriage, could also be applied to Ms. Chebu's declaration filed with the CRA. In 2019, she did not share any income with Mr. Touwa nor did she have Mr. Touwa's tax return so she believed that she could file as "[TRANSLATED] separated".
+[22] Mr. Touwa had the benefit of an attorney who advised him when he swore his response. Even after the fall of 2023, when he told Ms. Chebu that they were not in agreement on the date of separation which was written in the documents prepared for this hearing, Mr. Touwa never filed a notice to revise his response. The parties' explanations of the various written documents are all equally likely.
+[23] Ms. Chebu's honesty under oath and cross-examination impressed me. She was clear and gave her memory of the conflicts between the parties in a similar manner as her sworn declaration.
+[24] She admitted that she sought help from others on her conflicts with the respondent who frustrated her immensely. She testified that she never told Ms. Tchikantio or anyone that she would separate from the respondent. My view is that Ms. Chebu and Ms. Tchikantio potentially discussed the topic of separation but the discussions were mainly focused on Ms. Chebu's frustration and anger towards Mr. Touwa on the issue of her mother's immigration.
+[25] The suggestion that the parties were separated since their disagreement on Ms. Chebu's mother's immigration was not supported by the evidence.
+[26] On the topic of her tax return, under cross-examination, she stated that she indicated "[TRANSLATED] separated" to the Canada Revenue Agency since the respondent give her his income to note on her return. She intended to file her tax return but did not intend to separate in the marriage. I accept this.
+[27] I also found Mr. Touwa to be credible. He did not try to avoid answering questions and he did not change any of the declarations in his solemn declaration at the hearing.
+[28] Given that the parties reported partial truths in their written documents, I prefer to concentrate on the totality of the evidence including the two witnesses and the areas where the parties' evidence align.
+[29] The following section details the facts pertinent to the **//Molodowich//** test.
+==== V. MOLODOWICH - THE SEVEN FACTORS ====
+=== The family household: sharing a home, personal and sexual relationship, housework ===
+[30] The parties stopped sleeping in the same room after April 12, 2020, but the uncontested evidence shows that they continued to act as partners by sharing a family home in all other ways until the start of December 2022.
+[31] Up until December 2022, the evidence demonstrates that the parties continued to live in the family home, took care of their children, bought food for the family, prepared meals and went out into the community with their children. In 2019 and in October 2022 when the claimant travelled to the Cameroon, it was the respondent drove the the claimant to and picked her up from the airport. There was no evidence that they began relationships with other partners before 2023.
+=== Social activities / societal image of the couple ===
+[32] The parties continued to participate in the same social activities, including activities with their friends and in the community and while including their children.
+[33] Mr. Touwa, Ms. Tchikantio and Mr. Ndonko testified that the parties had problems which were subjects of discussion between the parties. Neither Ms. Tchikantio nor Mr. Ndonko were informed that that the parties decided to separate and the parties did not inform each other on their decision.
+[34] Mr. Ndonko is Mr. Touwa's godfather of marriage. He affirmed in his solemn declaration that Ms. Chebu contacted him to indicate that she was experiencing  difficulties in her marriage to the respondent by expressing that she did not want more from the relationship. He answered Ms. Chebu's questions under cross-examination. Mr. Ndonko confirmed that he gave the claimant advice to try to resolve the conflicts with the respondent. His affidavit also declares that he did not think that he succeeded in convincing the claimant to stay with the respondent but he "[TRANSLATED] prayed for the survival and flourishing of their relationship." Mr. Ndonko did not have any knowledge on what the parties discussed with each other on the topic of ending their marriage.
+[35] Like Mr. Ndonko, Ms. Tchikantio had never visited Canada. They both had no first-hand knowledge of the parties' interactions in private and in the community, and no first-hand knowledge of how they acted as a couple in their marriage. Neither witness could testify on what the parties discussed with each other on the topic of ending their marraige.
+=== Financial support ===
+[36] The evidence shows no changes in their bank accounts, which were always maintained separately since the start of their relationship. Neither the fact that the respondent was not aware of the amount of the claimant's debt nor that it is possible (though not proven), that the claimant's debt was higher in 2022 than in 2019, are indications of separation or indications of that the claimant intended to separate.
+=== Children ===
+[37] The children were not aware of the separation, according to the evidence, before the claimant shared her plans to rent new housing in December 2022. The respondent never divulged the change in the relationship to the children. In fact, what was said on behalf of the respondent is that he continued to act in the same way to towards the children. He was not aware of any discussions that he had with the children on the topic of separation.
+[38] It is of note that in 2023, the respondent was waiting for 2019 documents from the claimant to determine his next steps. His waiting for historical documents that he did not have at the time, shows that he did not have the essential element, according to //McMilan// //(and other case law noted above)// - communication and knowledge of the claimant's intentions and of her intentions to separate.
+[39] The claimant filed her petition for divorce on December 1, 2022. She left the family home on December 3, 2022, a fact acknowledged by the respondent. I find that the evidence, in its entirety, shows a date of separation of December 3, 2022.
+==== VI. DECISION ====
+[40] The date of separation is established to be December 3, 2022. I ask Mr. Nagy to draft the order. If the parties are unable to agree on costs, they have leave to seek an order from the court. To do so, a party may schedule a hearing with the Court.
+%%______________________%% \\
+Judge of the Court of King's Bench