DATE: 20060616

DOCKET: C44188

COURT OF APPEAL FOR ONTARIO

RE:

LAVONNE STEPHEN, ANNE RIBERA, ELIZABETH ROUTLEDGE, THOMAS STEPHEN and LESLIE PINDER (Plaintiffs/Respondent) – and – PAUL STAWECKI and ANTHONY STAWECKI (Defendants/Appellants)

BEFORE:

SHARPE and JURIANSZ JJ.A. and Lane J. (ad hoc)

COUNSEL:

Hillel David

for the appellants

Kirk F. Stevens and Mark D. Lerner

for the respondent

HEARD & RELEASED ORALLY:

June 14, 2006

On appeal from the judgment of Justice David Little of the Superior Court of Justice dated September 13, 2006.

E N D O R S E M E N T

[1] This appeal arises from a claim for damages resulting from a fatal motor vehicle accident. The appellant submits that the trial judge erred in finding that the respondent was entitled to claim damages as the deceased’s “spouse” within the meaning of the Family Law Act R.S.O. 1990 c. F-3, ss. 1 and 29. The appellant also submits that the trial judge erred in failing to reduce the damages on account of various contingencies.

[2] The respondent and the deceased were not married. There is no dispute, however, that they were cohabiting as spouses on the date of the accident. The issue is whether they were cohabiting on May 6, 2000, three years before the accident, as required by s. 29. Section 29 defines “spouse” to include couples who have “cohabited continuously for a period of not less than three years” and s. 1(1) defines “cohabit” as “live together in a conjugal relationship, whether within or outside marriage”.

[3] The crucial finding of the trial judge was at paragraph 30 of his reasons:

The necessary intent to cohabit in a conjugal relationship was formed by the parties before May 6, 2000 although perhaps it was not documented until later. Their relationship was an exclusive one, neither party being unfaithful. They slept, shopped, gardened, cooked, cleaned, socialized, and lived together as a couple and were treated as such by their friends, family and neighbours. While they may not have finalized any joint financial arrangements and continued to maintain separate residences, they lived together under the same roof.

[4] The appellant submits that we should impose a bright line test and conclude that as the respondent had not “moved in” with the deceased as of May 6, they were not living together at that time. We disagree. In our view, “moving in” would add no precision to the meaning of “live together” and it would not provide the clear and definitive test sought by the appellant. The case law recognizes that given the variety of relationships and living arrangements, a mechanical bright line test is simply not possible. In our view, to accept the appellant’s argument would be inconsistent with the flexible approach taken by the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3 in this area. We agree with the respondent that the jurisprudence interprets “live together in a conjugal relationship” as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship: see Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.); Thauvette v. Malyon, [1996] O.J. No. 1356 (Ont. Ct. Gen. Div.); Campell v. Szoke, [2003] O.J. No. 3471 (S.C.).

[5] As the trial judge observed during the course of argument, the appellant led no evidence of the effect of various contingencies now advanced on appeal as grounds for reducing the damage assessment. We see no error on the part of the trial judge in refusing to reduce the damages on account of these alleged contingencies.

[6] Accordingly the appeal is dismissed with costs to the respondent fixed at $15,000 inclusive G.S.T. and disbursements.

“Robert J. Sharpe J.A.”

“R.G. Juriansz J.A.”

“D. Lane J. (ad hoc)”