DATE: 20060111

DOCKET: C43742

COURT OF APPEAL FOR ONTARIO

RE:

DAVID ALLAN SCHNARR (Respondent) –AND- KIM MARIE SCHNARR (Appellant)

BEFORE:

FELDMAN, LANG AND LAFORME JJ.A.

COUNSEL:

Brigitte Gratl

for the appellant

Cameron D. Trotter

for the respondent

HEARD:

January 9, 2006

On appeal from the judgment of R.C. Sills J. of the Superior Court of Justice, dated February 8, 2005 made at Kitchener, Ontario.

E N D O R S E M E N T

[1] Assuming that the husband and the wife had cohabited for more than 90 days, the issue was whether that cohabitation was for the “primary purpose” of reconciliation as set out in para. 24 of the parties’ separation agreement.

[2] The matter came on as a long motion matter rather than as a trial of the issue. In our view, the matter could not properly be determined on motion. It involved diametrically conflicting evidence on the “purpose” of the cohabitation and required findings of credibility. That conflicting evidence could only be resolved after a trial of the issues on viva voce evidence.

[3] Accordingly, we allow the appeal, set aside the order of the motion judge, and return the matter to the Superior Court of Justice for a trial of the issue under para. 24 together with such other issues as are ordered by the Superior Court.

[4] In all the circumstances of this case, it is our view that there should be no order for costs of this appeal.