Source: CanLII

Date: 20250513
Docket: DF 22-06-00999
(St. Beniface Centre)
Reference: Chebu c. Touwa
Citation: 2025 MBKB 65

BETWEEN

HUGUETTE FORTUNE CHEBU, ) Claimant
) Not represented
Claimant, )
- and - )
)
ERNEST TOUWA, )
)
Respondent. ) Laura Nagy
) For the respondent
)
) Dates of hearing:
) April 1-2, 2025
)
) Judgment rendered:
) May 13, 2025

BERTHAUDIN J.

JUDGMENT ON DATE OF SEPARATION

[1] The parties were married in 2007 in Cameroon. Their trial began with a Petition for Divorce filed by Ms. Chebu on December 3, 2022 (“Petition”) and an Answer filed by Mr. Touwa on January 27, 2023 (“Answer”). Their written documents seek an equal division of family property pursuant to The Family Property Act, CCSM c F25. They do not agree on the date of separation, and this was the question raised by Mr. Justice Huberdeau on January 17, 2025. The date of separation was the only disputed issue at the hearing of April 1-2, 2025.

[2] The Petition affirms a “[TRANSLATED] date of cessation of cohabitation” of December 1, 2022. However, in the Answer, the respondent declared the following: “[TRANSLATED] The respondent affirms that the date of separation was December 3, 2022, and he recalls this date because of a specific event.” At the start of the hearing, the respondent stated that the parties have been separated since September 24, 2018. At the end of the hearing, he submitted that the court should order a date of separation of January 1, 2019.

[3] The respondent urges the Court to consider the importance of several facts, including discussions between the parties and their families, the claimant's declarations to two government departments and, according to him, the financial habits of the claimant which changed in 2018 when she predicted their separation.

[4] The claimant maintains that considering the written material, and the evidence of the parties including evidence on the parties' habits, the date of separation was December 1, 2022 or December 3, 2022 or later. She would accept any of these dates of separation but not a date of separation in 2018.

[5] The Claimant emphatically submits that the evidence of the parties in their affidavits, which were tested by cross-examination, support a date of separation which coincides with her departure from the family home, December 3, 2022. I agree.

[6] There is no doubt that the parties had problems at home. That being the case, I am not convinced that the facts highlighted by the respondent my clear impression that the parties were not finally separated, or at all, until December 3, 2022. In coming to this conclusion, I have considered the parties' habits, what they communicated to each other, their words, their conduct and other factors noted below.

[7] The evidence consists of five affidavits from the parties and two witnesses for the respondent. Each was subject to cross-examination. The court also received the parties' written submissions at the start of the hearing.

[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.

[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:

(a) Closing and valuation dates

16 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.

[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:

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.

[12] The Court has found the evidence reliable in context of the Molodowich criteria 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.

[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 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.