ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-10-490-01
DATE: 20130617

BETWEEN:

SHARON PATRICIA CRAMER
Applicant

– and –

MICHAEL LEONARD CRAMER
Respondent

S. Deseron, for the Applicant
S. Campbell, for the Respondent

HEARD: May 22 and 23, 2013

REASONS FOR JUDGMENT

HEALEY J.

ISSUES FOR TRIAL

[1] The following issues were tried:

(i) Setting aside, varying, amending, or declaring invalid the Separation Agreement signed November 2, 2006, or any parts thereof;

(ii) Spousal support for the period from May 2, 2011, to the present and ongoing: entitlement, quantum and duration;

(iii) Equalization of the parties’ net family properties and pension; and,

(iv) Costs.

FACTS

[2] The parties separated in 2006. They have two children, Dustin, born August 17, 1989, (now 23 years of age) and Corey, born July 17, 1991 (now 21 years of age). This proceeding was commenced on October 21, 2011.

[3] The parties submitted a Statement of Agreed Facts which is appended to these Reasons.

[4] Additionally the court heard the following evidence:

Separation Date:

[5] According to Mrs. Cramer’s evidence, she initiated a conversation with Mr. Cramer on February 28, 2006, whereby she conveyed her dissatisfaction with the state of their marriage. Although her evidence about that conversation was somewhat vague, she obviously expressed sufficient intention to end the marriage that Mr. Cramer was prompted to suggest that they prepare a memorandum containing how they would deal with their assets upon separation. On cross-examination she agreed that that discussion was initiated by her desire to end the marriage, as by February 28 she had been thinking about separating for some time, but that during this initial conversation she just raised the possibility of leaving. She testified that on that day she expressed to her husband that they were going through a rough time and it was probably better if they split up. But although she was thinking of leaving, she stated that she did not decide to end the marriage on that day, and did not express that it was over. In his evidence Mr. Cramer stated that his wife told him that she was leaving that day, and that was why they prepared the memorandum, but ultimately Mrs. Cramer did not leave the matrimonial home for some time thereafter. Mrs. Cramer testified that she remained committed to the marriage from that date until the date that she left the matrimonial home on September 23, 2006.

[6] Mrs. Cramer said that during that discussion her husband made her feel guilty and told her that she was breaking up the family and was throwing away everything that they had worked for, and that if she left she would get nothing except half of the house. She testified that Mr. Cramer told her that she was ruining all of their lives, which she thought to be true. Prompted by her husband’s remarks during their meeting in February, Mrs. Cramer testified that she continued to work together to try to salvage the marriage. It was her evidence that either on February 28, or the following day, they had a discussion concluding that she was not going to leave and that they were going to work on the marriage. Following the discussion she went to a personal counsellor on two occasions, which ended because she did not think it was helping. Mrs. Cramer testified that during that intervening period she did not really think that things would work out, but that her husband wanted the marriage to work. Mrs. Cramer stated that by February 2006 she thought she would be leaving, but as it was the hardest thing to do, she was not sure that she was going to be able to do so.

[7] The parties agree that things came to a head on September 23, 2006, at which point Mr. Cramer asked his wife to leave the home if it was ultimately her intention to do so, as he could not bear the uncertainty any longer. According to Mr. Cramer's testimony, he knew that the marriage was over on February 28, even though he did not want that to be the case. He felt that it was his wife’s decision and he was waiting for her to realize that the marriage was over. She stated that prior to September 23 she never definitively told Mr. Cramer that she was leaving.

[8] Mr. Cramer testified that he continued to try to make the marriage work between February and September. Mrs. Cramer said that she made the same efforts. According to Mrs. Cramer they would try to do things together during those seven months, such as attending their sons’ hockey and lacrosse games together and having family dinners. Mr. Cramer denies this, saying that during that seven month period he attended all of the boys’ games and tournaments on his own. Neither told their sons that they were separating until September 23, although Mr. Cramer indicated that the boys knew that something was awry. They kept their finances together by depositing their paycheques into the joint account, as had been the case throughout the marriage. Although Mr. Cramer testified that Mrs. Cramer had opened her own bank account in January 2006, into which she deposited her paycheque, there is no documentary evidence showing that was in fact the case, and Mrs. Cramer denies having done so. Mrs. Cramer testified that they slept together in the same bedroom until the first week of September; Mr. Cramer testified that Mrs. Cramer slept in the spare bedroom starting in February. Neither of them took any steps to give effect to the transfers of property set out in the memorandum made on February 28. It was only after September that the house was transferred into Mr. Cramer's name, the investment accounts into Mrs. Cramer's name, and the parties together attended at their mutual accountant's office for advice about claiming the children as dependents for income tax purposes.

[9] Mr. Cramer testified that Mrs. Cramer was engaged in communications over the internet with other men in February 2006, and that there had been infidelity by Mrs. Cramer during the marriage. He recounted an event whereby Mrs. Cramer was to meet another man on Valentine’s Day in 2006, and her telling him that he would have to live with that type of incident. This evidence went unchallenged. However, there is no evidence that Mrs. Cramer entered into an enduring relationship until years after the parties separated.

[10] As for the memorandum that was prepared during the parties’ meeting on February 28, Mrs. Cramer agreed that she thought at the time that it covered everything that needed to be covered regarding their financial separation. Mr. Cramer testified that, had Mrs. Cramer left the home on that day, he believed that the memorandum would have constituted their separation agreement.

[11] Between February and September, Mr. Cramer purchased a program at an office supply store to assist him in preparing a separation agreement without the assistance of a lawyer. He explains that he did so because he felt that it was not a question of whether his wife would leave, but rather a matter of ‘when’. He began to prepare the typed agreement after Mrs. Cramer left the home in September.

[12] The parties signed a separation agreement on November 2, 2006. In the Recitals section, it indicates that the parties had agreed to live separate and apart and had done so since February 28, 2006.

[13] In 2010 Mrs. Cramer commenced an application for a divorce. In that application she named the date of separation as being February 28, 2006. In her affidavit for divorce, she again confirmed the date of separation was February 28, 2006. She testified that her lawyer simply used the date from the separation agreement, but did not explain why she did not correct that date when swearing to the truth of a document under oath.

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HEALEY J.

Released: June 17, 2013

[^1]: There were no claims for property or liabilities on the date of marriage for either party.