Court of Appeal for Ontario

Citation: Conde v. Ripley, 2009 ONCA 480

Date: 20090615

Docket: C47137

Before: Doherty, Blair and Lang JJ.A.

Between:

Zalia Conde

Applicant (Respondent)

and

Robert Ripley

Respondent (Appellant)

Counsel:

Shawn McNamara, for the respondent (appellant)

Alex Finlayson, for the applicant (respondent)

Heard & released orally: June 11, 2009

On appeal from the judgment of Justice N.L. Backhouse of the Superior Court of Justice dated April 20, 2007.

ENDORSEMENT

[1] The appeal challenges the trial judge’s finding that the parties cohabited continuously for more than three years and accordingly are “spouses” within the meaning of Part III of the Family Law Act, R.S.O. 1990, c. F.3, as amended.

[2] In particular, the appellant argues that the trial judge erred in her factual findings and in her use of the evidence given by the respondent’s psychiatrist.

[3] In careful and detailed reasons, the trial judge applied the correct test to the issue of the nature of the relationship between the parties. The trial judge’s findings of fact were more than adequately supported by the evidence. In making her findings, the trial judge specifically stated that she relied on objective evidence whenever it was available because she recognized that the evidence of the trial witnesses was “often contradictory and partisan.” While the trial judge did not canvass the minutiae of all the evidence of the numerous witnesses in the eight-day trial, a trial judge is not required to do so. We see no reason to interfere with the trial judge’s findings and the inferences that led to her conclusions regarding the parties’ cohabitation and its duration.

[4] The appellant takes issue with the opinion evidence given by the respondent’s psychiatrist. However, all of the opinion evidence challenged on appeal was in fact elicited by the appellant’s counsel during cross-examination of the psychiatrist. Moreover, when the trial judge referred to the evidence of the psychiatrist, it was for the purpose of recognizing the respondent’s emotional problems “as described by her psychiatrist.” The trial judge concluded that those emotional problems, which were linked to childhood abuse, explained the respondent’s infidelities during her relationship with the appellant. In addition, the trial judge observed that the fact that the respondent “hid the sexual liaisons” from the appellant, suggested that her relationship with the appellant was more than one of a friend or business associate. She concluded that the sexual infidelities were not fatal to the respondent’s claim. This conclusion was supported by the weight of all of the evidence. We see no reason to interfere.

[5] Accordingly, the appeal is dismissed.

[6] Costs of the appeal are payable by the appellant to the respondent fixed in the amount of $15,000, inclusive of disbursements and GST.

“Doherty J.A.”

“R.A. Blair J.A.”

“S.E. Lang J.A.”