Court File and Parties

Court File No.: Woodstock D77/09 Date: 2013-02-26 Ontario Court of Justice

Between: Wendy Colleen Monk Applicant

— And —

Zoran Bajric Respondent

Before: Justice P. R. W. Isaacs

Heard on: December 3, 2010, May 31 & October 3, 2011, February 17, 2012

Reasons for Judgment released: February 26, 2013

Counsel: James Battin, for the applicant Respondent on his own behalf

ISAACS J.:

Background and Claims

[1] The applicant Wendy Colleen Monk (hereinafter called Monk) is the mother of the child Taryn Harriett Fayne Brogden-Monk born April 2nd, 1995.

[2] The biological father of that child is Edward Brogden and he was a party to this proceeding for a short period of time as a result of a motion. That status as a party to the proceeding was terminated prior to trial on consent.

[3] Monk commenced an application in this court against Zoran Bajric the respondent (hereinafter referred to as Bajric). Monk's claim was for custody of her daughter Taryn, child support, spousal support, health insurance coverage and costs.

[4] Monk already has an Order of custody for Taryn against the biological father Brogden but she has brought this additional claim for custody in light of her allegation that Bajric has stood in the capacity of a parent and has accepted that role in the child's life.

[5] Monk's claim for spousal support is based on support obligations imposed under the Family Law Act. Section 29 of that Act describes a spouse as defined in subsection 1(1) as either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years.

[6] The claims of Monk are disputed by Bajric and have proceeded to trial over a course of four days spread out over a significant period of time as a result of illness to parties and counsel's availability as well as court scheduling concerns.

Applicant's Evidence and Allegations

[7] Monk's evidence and allegations are that the parties have resided in a common law relationship starting from November 19, 2004 up until March 5, 2009.

[8] She alleges that during that period of time the parties continuously lived together in a form of a conjugal relationship and that during that time Bajric accepted and treated Taryn in a way to justify a finding that he treated Taryn as his own child and accepted the responsibilities in that regard.

[9] In opposition to that claim, Bajric has testified that while there was a relationship of an intimate and romantic nature that did result in him staying over at Monk's residence from time to time, however he denied the allegation that it reached a state where he was living full time or "continuously" with her and that he accepted the responsibility for the child Taryn or Monk's home financially.

[10] Monk in support of her allegations raises issues of the fact that Bajric made a marriage proposal to her, purchased rings consistent with marriage, took part in active efforts to purchase a home together, took trips to Niagara Falls together, and filed numerous photographs of Bajric in her home all of which could be consistent with an apparent family type atmosphere and relationship.

[11] In addition to the photographs there is a Christmas card from Bajric to her that professes permanent love and affection consistent with the type of relationship that she alleges existed throughout until the period that they formally separated. Also, she has alleged that during the time they lived together that he paid all the living expenses as well as significant expenses for Taryn and her condition.

[12] In furtherance of her claim Monk produced some documentation that she alleges demonstrates more than just a dating form of relationship but is more consistent with a marital status. These included matters of her loan from his credit union through his employment and real estate Offers to Purchase.

Respondent's Evidence and Allegations

[13] For his part Bajric has testified and as well has produced a witness to confirm that during the period of time that Monk alleged that they were living together in a continuous spousal relationship, he was involved in a regular practice of socializing with other female persons in a form of dating. It would appear that it was frequent enough to be inconsistent with the marital-like relationship described by Monk.

[14] In addition to that there have been produced copies of e-mails between the parties some of which appear to confirm that he never did fully commit to this relationship and acknowledges that he was residing with his children (in London) on a regular basis.

[15] Bajric's main evidence in addition to his own testimony was that of his daughter Maria Bajric who confirmed that throughout the period that Monk alleges a "continuous residency" that her father Bajric was still living with Maria and her brother in London. She acknowledged that he did spend some time away on a regular basis with Monk but taking into consideration all of her testimony it would appear from her evidence that he was not living with Monk to the extent suggested by Monk.

[16] Bajric admits that while they did have something of a relationship during the time frame generally alleged by Monk, he denies that it reached the level of him living with her continuously. He testified that he had a home in London where he resided with his son and daughter and he maintained that as his full time home with the exception of periodic instances of staying over at Monk's residence. He does not deny that during the time frame suggested by Monk, that their relationship was a romantic/intimate one but he denies that it ever reached the stage of him living at her residence full time or continuously and denies that he would have been able to afford continuous cohabitation and to still maintain his London residency with the expenses for his children.

[17] Bajric doesn't dispute that he did have something of a relationship with the child Taryn during the period of time that he was in a relationship with Monk, but he denies that he ever accepted or held out that he was responsible for the child as a father. He did acknowledge a friendship and treated the child with kindness including assisting her with some matters that arose from time to time. He did help with transportation requirements for the child on occasion and also financially for some expenses. He indicated through his testimony that his relationship with the child arose out of and was dependant on his relationship with Monk.

[18] He alluded to the fact that Taryn had an ongoing relationship with her biological father who still paid child support for her and exercises regular access with her. Bajric has never attempted to interfere or displace her father from her life.

Credibility Analysis

[19] The issues of the claim for spousal support and child support require a determination as to the credibility and reliability of each of the parties in respect to the testimony that they have given under sworn oath.

[20] Bajric's evidence is suspect and requires scrutiny as a result of his allegations that he entered into this relationship with Monk reluctantly and found that she was a difficult person, and yet he proposed marriage, purchased engagement and wedding rings, took part in investigating and attempting to buy a home together. The photos that Monk produced at trial are certainly consistent with him appearing to be in a domestic circumstance and consistent with Monk's allegations.

[21] His evidence about the state of their relationship and his dancing and dating outside of this relationship is difficult to understand and reconcile with Monk's version of their affair however it is clear from the financial information that was presented that it was virtually impossible for him to fully support and maintain Monk's household and Taryn's expenses as she has alleged. That allegation includes him being fully responsible for all utilities, rent, food and ancillary costs and expenses incurred in a household.

[22] Bajric's evidence with respect to his relationship and his version as to the limited time spent at Monk's residence is difficult to reconcile with the wealth of photographic evidence that has been presented to the Court showing him apparently in her home in a multitude of family scenes which would appear to be consistent with at least her version of him residing there and consistent with her allegations as to the nature of their relationship. His testimony is that he wasn't able to support her and Taryn financially as she has alleged because of his outstanding financial obligations under a court order to his past wife and the maintenance and expenses of his residence in London that housed his son and daughter. In order to accommodate that, maintain his own residence in London and to comply with all of his financial obligations would be virtually impossible.

[23] However the reliability of Monk's overall assertions requires scrutiny and clearly there are areas of the testimony that are difficult to reconcile with the stated position of Monk. She had testified that while living with her Bajric had taken an apartment in London in case of bad weather. This appears to ignore the existence and responsibility that Bajric had with respect to his son and daughter who continued to reside in London in that residence maintained by him.

[24] Monk testified about their financial affairs and while she has maintained that Bajric was fully responsible for all of the cost and expenses for food, rent and utilities for her home throughout the period of time of the relationship as she defined it. During that time she was unemployed and her testimony appeared to change at one stage; she said that he wanted her to work and at another portion of her testimony she indicated that he did not want her employed.

[25] During her cross examination she was confronted with a series of e-mails that were sent between herself and Bajric which appear to recognize and acknowledge a state of their relationship indicating that they were not living together as she has alleged. She did not agree with the conclusion that they demonstrated that they were not cohabitating although that would appear to be the ordinary meaning of them. It is difficult to understand her response in respect to the e-mails, firstly that she didn't remember those e-mails being sent and later she alleged that these e-mails were sent while they were both in the same home (rather than communicating face to face) and that often some of the e-mails disclosed a state of their relationship that was a fiction and was solely for the purposes of allowing them to embark upon "makeup sex" later.

[26] As indicated above the reconciliation of these various statements and evidence of both parties pose problems as to credibility and reliability. However it has to be acknowledged that in order to be successful Monk must prove on the balance of probabilities her version of the affairs of the continuous residency and cohabitation.

Assessment of Third-Party Evidence

[27] While acknowledging the discrepancies and the resulting questionable credibility of Monk and Bajric, the Court was impressed and accepted the testimony of Maria Bajric the daughter of Bajric. She testified in a forthright fashion and outlined her personal health and financial circumstances which would indicate a need and reliance on the financial support of her father. She testified that he paid for the rent and food for their household. She acknowledged that he had been in a relationship with Monk and that she characterized it as an on again off again type of relationship indicating it wasn't a happy one and that her father did stay at Monk's from time to time but was predominately still living with her and her brother in London.

[28] Consistent with Bajric's characterization of the state of this failing relationship, she acknowledged that Monk was calling him persistently and that it was not a happy relationship. She came to that conclusion from observing her father and his moods with respect to the relationship. She acknowledges that she knew he proposed to Monk in November of 2006 and when it was disclosed to herself and her brother they laughed and complained that Monk and Bajric were worse that a high school couple because of the manner in which they carried on, the breakups, the makeups and the confrontations that occurred on a reasonably regular basis. Despite all of the unusual circumstances of these parties her evidence is the clearest and was given in the most direct fashion and very little was presented that called into question her veracity or reliability.

Missing Evidence and Proof

[29] In addition to the problem of the reliability of Monk's testimony and the consequential effect of Maria Bajric's testimony, there are a number of matters of proof that have not been presented. There are things that would normally prove the issue of continuous cohabitation. They are matters that could have assisted with respect to the determination of the allegation of continuous cohabitation. There is no evidence given with respect to any change of Bajric's postal address, there was no documentary proof given to substantiate the allegations of the dependence upon his financial support for Monk's household, no cancelled cheques, receipted bills or accounts. There was no evidence given with respect to circumstances of moving into Monk's residence especially as to clothing, personal items any furnishings all of which one would have thought would be readily available to substantiate the continued cohabitation of these parties. There was no evidence as to the particulars of when and how Bajric moved into Monk's residence. No evidence from neighbours or friends of Monk to confirm their continual cohabitation.

Decision

[30] Bajric should never have allowed this relationship to reach a stage of marriage proposals, house hunting and purchase of rings in light of his reservations about Monk, her circumstances and personality. However despite the questionable circumstances and conduct of him I am not satisfied by the evidence that has been presented to the Court in this trial that it has been established that Monk has proven on the preponderance of the evidence that the parties had continuously lived together for at least three years as spouses.

[31] It is also not proven on the evidence that Bajric has held out and accepted the responsibility, duties and obligations of a father for Taryn. Despite the evidence that the child may have referred to him as "Dad" on occasion and that there existed a warm and friendly relationship between them, there is lacking any objective corroboration of Monk's allegation that he accepted the right and responsibility of a father.

[32] I am satisfied that as a result of the approximate five year period of an intimate romantic relationship between the parties that there were some periods of cohabitation during which the parties interacted in a domestic fashion but other than the observations of Monk and the allegations that Taryn called him a father on occasion I am not satisfied that there has been that level of evidence to substantiate that his conduct towards that child reaches the level to determine that he agreed to stand in the capacity of a parent and to accept the responsibilities in that regard.

[33] Accordingly, at this time, in this proceeding, the evidence submitted by Monk is insufficient, especially in light of the evidence given in opposition to her claims and accordingly the claim for spousal support and the claim for child support and other ancillary claims are dismissed. There is no issue as to Monk's claim of custody of her daughter, she already has such an order and no competing claims have been advanced by Bajric.

[34] In light of the manner in which this matter came before the Court and the critical comments about the conduct of Bajric, there will be no order as to costs.

Released: February 26, 2013

Signed: "Justice P. R. W. ISAACS"