Court File and Parties

COURT FILE NO.: FS-18-001735 DATE: 20190418 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Pamela Ramoutar, Applicant AND: Aknath Ramoutar, Respondent

BEFORE: Madam Justice Kristjanson

COUNSEL: Ashraful Karim, for the Applicant Adina Schild, for the Respondent

HEARD: April 9, 2019

Endorsement

1In April, 2018, the Applicant commenced an Application seeking equalization, retroactive child support and retroactive spousal support. The Application claimed the date of separation was September 1, 2005. The Respondent’s position is that the parties separated with no reasonable prospect of cohabitation on September 1, 2005. Ms. Ramoutar now brings a motion to amend the Application to change the date of separation from September, 2005 to December, 2012, which would bring her within the limitation period in section 7(3) of the Family Law Act, R.S.O. 1990, c. F.3. The Applicant’s claim for equalization of net family property must be brought within six years after the spouses separate and there is no reasonable prospect that they will resume cohabitation. In the alternative, Ms. Ramoutar seeks an order allowing her to amend her Application to seek an extension to the limitation period for equalization of the parties’ net family property pursuant to section 2(8) of the Family Law Act.

2I dismiss the motion for leave to amend the Application to change the separation date. Mr. Ramoutar consents to the motion for leave to amend the Application to seek to extend the limitation period for equalization of net family property. The issue of whether the limitation period will be extended is to be argued after the draft Amended Application is provided.

Issues

3There are two issues:

(1) Should Ms. Ramoutar be granted leave to amend her Application to change the separation date from September, 2005 to December, 2012?

(2) If not, should Ms. Ramoutar be granted leave to amend her Application to seek to extend the limitation period for equalization of the parties’ net family property pursuant to section 2(8) of the Family Law Act, and on what terms?

Issue #1: Amending the Date of Separation

4Ms. Ramoutar seeks to amend her application to change the date of separation from September, 2005 to December, 2012. Rule 11(2) of the Family Law Rules provides:

11(3) On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

5Rule 22(5) of the Family Rules governs withdrawing an admission, and provides:

22(5) An admission that a fact is true or that a document is genuine (whether contained in a document served in the case or resulting from subrule (4)), may be withdrawn only with the other party’s consent or with the court’s permission.

6In Forget v. Forget, 2001 O.J. No. 3691, para. 7, Justice Rogers determined that the statement of a date of separation is an admission of fact. I agree. Ms. Ramoutar is seeking to withdraw an admission that a fact is true.

7The test for withdrawal of an admission in a family law case as set out in Forget, para. 17, is:

(1) the proposed amendment is on a triable issue, (2) the admission was a mistake and the party offers a reasonable explanation for the change of position, and (3) any prejudice caused by the withdrawal can be cured or compensated for in costs.

Facts

8The parties have three adult children age 37, 33 and 31; two of them live with their partners and their own children. One lives with his mother but is independent.

9In her Application dated April, 2018, Ms Ramoutar identifies the date of separation as September 1, 2005. She recounts in detail the events leading up to the separation, alleging an abusive environment from which she fled with the children in September, 2005. She does not plead anywhere in the Application that the parties were attempting to reconcile between 2005 and 2012. She swore two Form 13.1 Financial Statements, dated April and September, 2018, using a valuation date of September 1, 2005. She changed counsel in June, 2018.

10In her March, 2019 affidavit filed on this motion, her evidence is that although she moved out of the matrimonial home in September, 2005 “to save myself and the kids from an abusive environment created by the Respodent”, “there was a reasonable prospect until December, 2012” that they would resume cohabitation. She does not explain the basis of this reasonable prospect and adduces no credible evidence as to why there was a reasonable prospect of resuming cohabitation.

11Ms. Ramoutar makes the following bald allegations or statements about the relationship with Mr. Ramoutar after 2005:

(a) “I met with the Respondent and we had casual intermittent phases of intimacy between 2005 and 2012” – the nature and frequency and even meaning of the term “intimacy” is not described. The Respondent denies being intimate. (b) “I went to social events/functions with the Respondent on different occasions between 2005 and 2012 – the nature and frequency of social events is not described, but in any event, as co-parents of three children it is not unusual that they attended social functions together. The Respondent acknowledges attending social events with friends and family, but denies they attended as a couple.

12Ms. Ramoutar also relies on the fact that Mr. Ramoutar kept her on his disability plan until January, 2013, “which is indicative of our continued relationship/prospect of resumption of cohabitation.” In the context of all the evidence, I do not find this to be evidence of a reasonable prospect of the resumption of cohabitation. Mr. Ramoutar’s explanation is reasonable – that he kept her on his benefits plan out of courtesy, but when the employer’s plan changed, he could not keep her on without stating they were in a relationship and he did not want to lie.

13Ms. Ramoutar states that she sought “brief legal advice” on child support from an unnamed lawyer sometime between 2005 and 2007, but she did not discuss equalization and was not aware of a limitation period. She also says that “since I had an on and off relationship with the Respondent, I never thought that we are separated in the strict legal sense.”

14In her Reply, she pleads that in about 2012, she obtained legal advice and was advised by her (unnamed) counsel in 2012 that “the limitation doesn’t run if the parties are having casual intimate relationship and also if the parties are continuing to discover the opportunities to resume cohabitation,” and that “in the absence of a Separation Agreement, there is a presumption that the parties are not separated if they continue to discover opportunities to resume cohabitation.” The counsel is unnamed, the file was not produced, nor did she provide an affidavit from the counsel.

15In her affidavit, she swears that in March, 2018 she consulted her former legal counsel, Mr. Hussain, who advised her that “the limitation doesn’t run if the parties are having casual intimate relationship and also if the parties are continuing to discover the opportunities to resume cohabitation,” and since there is no separation agreement, they were not “actually separated from each other.” She did not produce Mr. Hussain’s file, nor did she provide an affidavit from former legal counsel.

16Ms. Ramoutar’s brother has provided an affidavit stating that he ran into Mr. Ramoutar in a pub in or around June, 2012, and during the conversation Mr. Ramoutar told him that he is still seeing Mrs. Ramoutar sometimes, and both of them “are still continuing to discover the opportunities to resume cohabitation.” Mr. Ramoutar denies this conversation.

17The brother attributes to Mr. Ramoutar in a casual conversation the exact same phrase “continuing to discover the opportunities to resume cohabitation” that was allegedly conveyed, word for word, to Ms. Ramoutar by legal counsel in 2012 and 2018. Because of the specificity of the unusual language, and the fact that this is not the correct legal test, this leads me to conclude that Mr. Ramoutar did not utter these words to Ms. Ramoutar’s brother, and I place no weight on the affidavit of her brother. In the absence of the legal files or evidence regarding the alleged identical (incorrect) advice given by two separate lawyers in 2012 and 2018, I place no weight on Ms. Ramoutar’s assertion of the legal advice given. In any event, the burden of following incorrect legal advice does not fall on the respondent, but on the recipient of the advice.

18Ms. Ramoutar adduced no evidence of the kinds of indicia the courts look to in determining whether parties are separated, or if there is an objectively reasonable prospect of resuming cohabitation. There is essentially no evidence of the types of factors set out in Warren v. Warren, 2019 ONSC 1751, para. 7:

(a) Physical separation, including occupying separate bedroom, maintaining separate residences and reasons for maintaining separate residences; (b) Presence or absence of sexual intimacy, although acts of intercourse do not necessarily imply periods of cohabitation with reconciliation as their purpose. This factor includes a consideration of the “attitude of fidelity”….; (c) Communication between the spouses and discussion of family problems as well as planning for the future; (d) Joint social activities, celebrating social occasions together, gifts, helping each other through difficult times, vacations together; (e) The relationship and conduct of each of them toward members of their respective families and their friends, and how the friends and families behaved towards the parties; (f) The financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.) and the sharing of assets. This includes a consideration of whether steps were taken to separate the parties’ assets, the continued use of a joint safety deposit box, joint credit cards, and bank accounts, spousal RRSP contributions, use of shared vehicles, and making plans for his or her assets as a separated person; (g) How the parties referred to themselves in documents, including income tax returns, and to friends and families; (h) Steps taken towards the legal termination of their relationship; (i) Meal pattern, including eating meals together and performance of household tasks, including washing clothes, cleaning and shopping; (j) Efforts to resume cohabitation (mediation, counselling, property purchase or lease, “meaningful discussions…as to if, how or when their marriage might be put back together”): Torosantucci v. Torosantucci, [1991] O.J. No. 759 (Ont. U.F.C.) per Beckett, J. at p. 4; for the factors listed above, see also Oswell v. Oswell (1990), 28 R.F.L. (3d) 10 (Ont. H.C.J.), aff’d (1992), 43 R.F.L. (3d) 180 (Ont. C.A.); Sturgess v. Shaw, [2002] O.J. No. 2250 (Sup. Ct.); Ogilvy v. Ogilvy at para. 37; Rosseter v. Rosseter, 2013 ONSC 779; Greaves v. Greaves at paras. 34-37; Molodowich v. Molodowich

19By contrast, Mr. Ramoutar’s evidence is that the parties finally separated on September 1, 2005 with no reasonable prospect of resuming cohabitation. He denies that the parties were ever intimate after that date. He also provides detailed evidence of steps taken to unwind the parties’ financial affairs, and indicia that there was no reasonable prospect of resuming cohabitation:

(a) In 2006, just after separation, he transferred his 50% ownership of a business to Ms. Ramoutar in an attempt to cut financial ties as they were not in a relationship; (b) Mr. Ramoutar lived with the middle child in the matrimonial home until 2007, when the child graduated from high school. The matrimonial home was sold in 2007 to the Applicant’s brother, to allow the parties to get money and move on with their lives; (c) The day prior to the separation, Ms. Ramoutar purchased a property with Mr. Kisten as tenants in common, with Ms. Ramoutar holding 99% and Mr. Kisten1%. The Charge/Mortgage registered on title and dated August 31, 2005 shows that Ms. Ramoutar declared that she was separated from her spouse. Mr. Ramoutar’s evidence is that Mr. Kisten was her boyfriend; Ms. Ramoutar’s evidence is that is was a business partnership and he “was not her boyfriend at this time,” although she does not deny a later statement that they were in a relationship; (d) In 2010, Ms. Ramoutar transferred her interest in this home to Mr. Kisten, for $2 and his assumption of the outstanding mortgage. When Ms. Ramoutar transferred her interest, the Transfer documents registered on title stated that she is not a spouse; and (e) Ms. Ramoutar lived with Mr. Kisten from August 31, 2005 to March, 2010.

20Mr. Ramoutar’s evidence is that he has been in a permanent relationship with his girlfriend since 2010.

Triable Issue

21While the threshold for meeting this test is a low one, the burden is on the moving party to call some evidence to show that there is a triable issue. The applicant states that there was a “reasonable prospect, until December, 2012 that both the Respondent and myself will resume cohabitation.” However, this assertion rests entirely on bald allegations or statements; I find she has not established a triable issue on the evidence, taken as a whole.

22Her brother’s evidence is that sometime in June, 2012, the husband told him that the parties were “still continuing to discover the opportunities to resume cohabitation.” This is not the test for the date of separation. The limitation period in section 7(3) of the Family Law Act, R.S.O. 1990, c. F.3, provides that a claim for equalization of net family property must be brought within six years after the spouses separate and there is no reasonable prospect that they will resume cohabitation. The valuation date for equalization purposes under section 4(1) is defined to include “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.” “Cohabit” under the FLA “means to live together in a conjugal relationship, whether within or outside marriage”: section 1(1).

23As I stated in Warren v. Warren, 2019 ONSC 1751 at para. 6:

The court must determine objectively the date when the parties separated with no reasonable prospect or expectation of resuming cohabitation. The issue is whether a reasonable person, knowing all the circumstances, would reasonably believe that the parties had a prospect of resuming cohabitation. A determination of a reasonable prospect of the resumption of cohabitation, or reconciliation, is based on the intention of the parties. The true intention of the parties requires a consideration of objective factors and may differ from stated intentions. The intentions must be joint, not one-sided or mere wishful thinking as set out in Torosantucci v. Torosantucci (1991), 32 R.F.L. (3d) 202 (Ont. U. Fam. Ct.) at para. 14 per Beckett J.:

A reasonable prospect of reconciliation must be more than wishful thinking on the part of either party. There must be more than residual affection that may linger by one or both of the parties. The Act does not speak of a “prospect” of reconciliation but a “reasonable prospect.” The Oxford Concise Dictionary 7th Edition defines prospect as “expectation,” “what one expects.” The question is whether a reasonable person knowing all of the circumstances, would reasonably believe that the parties had a prospect or expectation of resuming cohabitation ... But wishful thinking is not the stuff of reconciliation. There must be some indication or step taken by both of them in that direction. (emphasis added)

24The husband has provided significant contemporaneous documentary evidence and affidavit evidence that the parties’ date of separation was September 1, 2005 as originally asserted by the Applicant in her Application. The parties unwound their financial affairs and sold the matrimonial home. Ms. Ramoutar lived with a different partner from 2005-2010; she declared herself to be separated on all the property registrations. Mr. Ramoutar has been in a permanent relationship with a different partner since 2010. There is no other evidence of steps taken by both of them that would indicate a reasonable prospect of resuming cohabitation.

25I do not find that the evidence of the wife meets the threshold test of a triable issue on the date of separation.

Reasonable Explanation for Change of Position

26The Applicant has not proffered a reasonable explanation for her change in position. She blames her former counsel, Mr. Hussain, for the defect in her pleading, and takes the position that “due to lack of proper legal advice and previous counsel’s lack of understanding of the background of the relationship, this date has been mistakenly mentioned in the Application as Separation Date.” The Applicant did not produce the file of her former lawyer, nor did she provide an affidavit from her former lawyer – this is a bald allegation.

27Following the issuance of the Application, on April 9, 2018, the Applicant swore a Form 13.1 Financial Statement with the September, 2005 valuation date, this time commissioned by Sakib Alam, a different person in her former counsel’s office. On September 13, 2018, the Applicant swore another financial statement swearing the date of separation was September 1, 2005, this time commissioned by her current counsel, Mr. Karim. Notably, financial statements are prepared using the date of separation – her counsel must obtain figures about the values of assets and liabilities for a specific date.

28The only explanation for the December 2012 date of separation is that when Ms. Ramoutar learned the health benefits were no longer in place with no discussion, she realized there was no further reasonable prospect for resuming cohabitation. There is no other narrative regarding the relationship between 2005 and 2012, nor any evidence of what led to the alleged ending of the relationship in December, 2012.

29Ms. Ramoutar also asserted that she suffers from Lyme disease, depression, arthritis, fibromyalgia and diabetes, and “it is only as of 2017 that I started to recover and to be able to deal with the challenges in my life.” She has not filed any medical evidence or expert evidence to establish the existence of these conditions, or incapacity, or inability from 2005 to 2017 to seek legal advice or participate in a legal case. There is no evidentiary foundation for the assertion in her factum that “the Applicant had long term disease and was not fully aware of her rights at all material times.”

30She also attempts to explain the 13 year delay by asserting that the respondent repeatedly threatened that he would move out of Canada if any FLA claim was initiated. The threats are bald allegations with no details as to date, time, or circumstances. Mr. Ramoutar denies the allegations. His evidence is that he has raised his family in Canada; he has worked for the same employer in Canada for almost 40 years; he has never had any intention of moving back to Trinidad. In the family justice system, steps must be taken to assert rights in a timely manner, and the Rules and Family Law Act are predicated on the timely assertion and pursuit of legal rights. This is not a reasonable explanation for the change in position.

31I find no evidence which would provide a reasonable explanation for the change of position.

Any Prejudice Caused by the Withdrawal Can Be Cured or Compensated in Costs

32The Respondent relied on the admission that the date of separation was September 1, 2005, which means that there was an intervening limitation period barring an equalization claim as of September 1, 2011. The onus is on the moving party to show that the opposite party will not be prejudiced by the withdrawal of an admission: Kostruba and Sons v. Perez, 2011 ONSC 4894 at para. 42.

33Generally, “the expiry of a limitation period can give rise to some presumptive prejudice, the strength of which increases with the passage of time. Where the presumption arises, the plaintiff bears the burden of rebutting the presumption, on proper evidence:” Wellwood v. Ontario Provincial Police, 102 O.R. (3d) 555 (C.A.), 2010 ONCA 386 at para. 60.

34The family justice system requires parties to settle their disputes in a timely manner, and recognizes the importance of finality. The limitation period in the Family Law Act for equalization claims is reflective of this public interest. As Sharpe, J.A. stated in Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695 at para. 25:

[T]here is a strong public interest in promoting the timely resolution of disputes. "The notion that justice delayed is justice denied reaches back to the mists of time . . . .For centuries, those working with our legal system have recognized that unnecessary delay strikes against its core values and have done everything within their powers to combat it": Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, at para. 146. The interest of litigants involved in the civil justice system in timely justice is obvious. Litigants are entitled to have their disputes resolved quickly so that they can get on with their lives. Delay multiplies costs and breeds frustration and unfairness.

35In Poirier v. Alie, [2007] OJ No. 3798, para 28, Justice Parfett held that “prejudice can occur if the Respondent has organized her financial affairs in the belief that there will be no claim for equalization because the limitation period has passed.” The Respondent’s evidence is that he has arranged his financial affairs after the separation on the basis that the matters between the parties had resolved, including the transfer of his business to Ms. Ramoutar in 2006, and the sale of the matrimonial home in 2007.

36In this case, the Applicant has called no evidence to rebut the presumption of prejudice that would be caused to the Respondent, who is entitled to rely on the admission that the date of separation was September, 2005, and the equalization claim is barred by the intervening limitation period in section 7(3)(b) of the Family Law Act.

37As a result, the motion to amend the Application by changing the date of separation to December, 2012 is dismissed.

Issue #2: Amending to Seek Extension of Time

38The Applicant seeks to amend her Application pursuant to Family Law Rule 11(3) to seek an order for an extension of the limitation period for equalization of the parties’ net family property. Section 2(8) of the Family Law Act provides:

2(8) The court may, on motion, extend a time prescribed by this Act if it is satisfied that, (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and (c) no person will suffer substantial prejudice by reason of the delay.

39The Respondent does not object to the amendment to seek the order for extension of the limitation period, but requires that (a) the Applicant should provide the Amended Application, and (b) pursuant to Rule 11(3), he should be compensated for the cost of amending his Answer. Of note, on July, 2018 the Respondent’s counsel requested a copy of the draft Amended Application; it still has not been provided.

40The Applicant should have provided a draft Amended Application for this motion. She failed to do so. Therefore, the Respondent has no way to determine the extent of the amendment that may be required. Given the Applicant’s failure to provide a draft Amended Application, I order the Applicant to pay the Respondent $1,000.00 in costs, inclusive of HST, in respect of the Respondent’s amendments to the Answer.

41In the Notice of Motion, the Applicant sought leave to amend her Application to seek an extension of the limitation period. She did not seek to argue the merits of the limitation period extension. The matter was booked as a short motion. The Respondent brought a cross-motion on March 18, seeking an order that the merits of the extension issue be determined on the same day, without booking additional time. In the absence of the Amended Application, the extension of time could not be argued on its merits. The Applicant will have to schedule another motion date to argue the substantive issue of whether the time for advancing a claim for equalization of the parties’ net family property should be extended by an additional 7 years, from September 2011 to April, 2018.

Costs

42The Respondent seeks costs of $8,173.46 on a partial indemnity basis, and $11,649.74 on a full indemnity basis, inclusive of disbursements and HST, which includes costs of the cross-motion. The Respondent served an Offer to Settle on March 18, 2019. The Offer was severable, and the Respondent matched her Offer, paragraphs 1 and 2. The Court did not deal with the other issues in the Offer as they related to the Respondent’s cross-motion.

43Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules): Mattina v. Mattina, 2018 ONCA 867.

44Subrule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party.

45Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality: Beaver v. Hill, 2018 ONCA 840. An award of costs is subject to: the factors listed in subrule 24(12), subrule 24(4) (unreasonable conduct of a successful party), subrule 24(8) (bad faith), subrule 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: Berta v. Berta, 2015 ONCA 918 at para. 94.

46I have considered the factors set out in subrule 24(12) of the Rules which reads as follows:

24 (12) In setting the amount of costs, the court shall consider the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues: (i) each party's behaviour, (ii) the time spent by each party, (iii) any written offers to settle including offers that do not meet the requirements of rule 18, (iv)any legal fees, including the number of lawyers and their rates, (v)any expert witness fees, including the number of experts and their rates, (vi)any other expenses properly paid or payable; and (b) any other relevant matter.

47Subrule 24(5) provides criteria for determining the reasonableness of a party's behaviour in a case (a factor in clause 24(12)(a)(i) above); the primary reasonableness issue here related to the reasonable Offer to Settle made by the Respondent.

48I have also considered Boucher et al. v. Public Accountants Council for the Province of Ontario at para. 26, where the court held that "the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant." The costs determination must reflect proportionality to the issues argued. There should be a correlation between legal fees incurred (for which reimbursement is sought) and the importance or monetary value of the issues at stake. This issue was of critical importance to the Respondent, since it involved a limitation period which would bar the Applicant’s claim. He filed extensive affidavit materials.

49The Respondent beat his Offer on the two issues dealt with today. The Court did not deal with the merits of the extension, since that was not in the Applicant’s Notice of Motion, no draft Amended Application was provided and no additional time was booked. Some portion of the costs was attributable to that aspect; the time expended may be claimed on that motion. I set costs in the amount of $7,000.00, payable by the Applicant to the Respondent within 30 days. The reduction to the full recovery claim accounts for costs incurred prior to the Offer to Settle and time expended on the portions of the cross-motion not dealt with today. This amount is fair and reasonable, given the issues at stake and the importance to the Respondent. The hours and time claimed are reasonable.

50This court orders that:

(a) The Applicant is to serve and file the Amended Application seeking an extension of the limitation period for claiming equalization pursuant to section 2(8) of the Family Law Act by May 13, 2019. (b) The Applicant is to pay the Respondent $1,000 in costs relating to preparing an Amended Answer by May 13, 2019. (c) The Respondent is to serve and file the Amended Answer by June 10, 2019. (d) The Applicant is to serve and file an Amended Reply, if any, by June 20, 2019. (e) The Applicant may bring a motion for an extension of the limitation period for claiming equalization pursuant to section 2(8) of the Family Law Act on 14 days’ notice. The materials filed on this motion and cross-motion are to be brought before the motions judge. The parties may, but are not required to, file supplementary affidavits and/or factums in accordance with the Rules. (f) The Applicant’s motion to amend the Application by changing the date of separation to December, 2012 is dismissed. (g) The Applicant is to pay costs of this motion to the Respondent in the amount of $7,000.00, inclusive of fees and HST, within 30 days.

Kristjanson, J.