ONTARIO

SUPERIOR COURT OF JUSTICE

L’ORIGNAL COURT FILE NO.: 717-2012

DATE: 2013/02/05

BETWEEN:

PATRICIA LALONDE

Applicant

– and –

NORMA MOORE, ALLEN MOORE, PAUL SMITH, KRISTINE SMITH (NÉE MENARD), PATRICK JASON MENARD, KARINA MENARD and the ESTATE OF THE LATE LOUIS PATRICK MENARD

Respondents

Gerald E. Langlois, Q.C., for the Applicant

Julie Guindon, for the Respondents

HEARD: December 14, 2012

REASONS ON motion

Linhares de Sousa J.

INTRODUCTION AND PARTIES

[1] The sole issue for determination in this motion, an issue of mixed fact and law, is whether the Applicant, Patricia Lalonde can be found to be a spouse within the meaning of the Succession Law Reform Act, R.S.O. 1990, c. S.26, as am. (“the Act”). The motion is heard in the context of an application and counter application arising out of the death of the late Louis Patrick Menard which occurred on August 11, 2012. At the time of the death of the deceased, Ms. Lalonde was his common law partner and cohabited with him in his home.

[2] The Respondents, who have brought the counter-application in response to Ms. Lalonde’s application, are the three adult children of the deceased, Kristine Smith (née Menard), Patricia Jason Menard and Karina Menard, the spouse of Kristine Smith, Paul Smith, the sister of the deceased, Norma Moore and her spouse, Allen Moore and the Estate of the Late Louis Patrick Menard. The deceased’s three children, Patrick Jason Menard, Karina Menard and Kristine Menard are the executors and sole beneficiaries of the deceased’s estate.

FACTUAL BACKGROUND

[3] In determining the sole issue on this motion it is not necessary to recite in detail the factual background of this sad family dispute. Suffice it to say simply, that prior to the deceased’s death conflict arose between Ms. Lalonde and the other family members concerning the medical treatment of the deceased, who should have been making the medical decisions and the location of his treatment. Each party has presented their own version of events leading up to the death of the deceased in their application material. The conflicts in the material cannot be resolved here.

[4] Upon the death of Mr. Menard, the conflict intensified at break-neck speed. On the day of his death a number of the Respondents attended at the home of the deceased and Ms. Lalonde to obtain the will and other documents of the deceased. Two days later, on August 13, 2012, the Respondents had consulted a lawyer and a letter was sent to Ms. Lalonde to vacate within 24 hours the home in which she and the deceased were living at the time of the deceased’s death.

[5] The deceased’s funeral was on August 23, 2012. The Respondents, through their lawyer, informed Ms. Lalonde that she would not be welcome at the funeral of the deceased and offered her an earlier day for a private visit with the deceased at the funeral home. Ms. Lalonde attended at the funeral home on August 23, 2012, was asked to leave by the Respondents because she was not welcome, which she did.

[6] Ms. Lalonde did not vacate the property when requested to do so by the Respondents and in turn consulted a lawyer. Thus was spawned the application and counter-application before the court.

[7] In her application, Ms. Lalonde, seeks among other relief that the costs of the home in which she lived with the deceased at the time of his death and in which she continues to live be paid by the Estate of the deceased. She also seeks spousal support from the estate of the deceased based on need.

[8] The Respondents in response and by way of their counter-application contest Ms. Lalonde’s claim to spousal support and her right to remain living in their father’s home. It is their position that the estate of the deceased has limited money and assets. It is therefore imperative that their father’s home be sold. Furthermore, they argue that Ms. Lalonde does not qualify as a spouse under the Act and hence not entitled to spousal support from their father’s estate.

[9] This matter appeared before Charbonneau J. on September 28, 2012 and adjourned at the request of the Respondents, on terms as set out in the endorsement of Charbonneau J. of that date. The result was what one might call a without prejudice holding action until the application could be heard. Ms. Lalonde maintained exclusive and peaceful occupation of the home, with the estate of the deceased being responsible for the ongoing expenses of the home. The Respondents were also to provide provisional disclosure of the estate assets and debts.

[10] When this matter came before me on November 2, 2012, it was agreed that the matter would again be adjourned to December 14, 2012, to be argued on the sole issue of whether Ms. Lalonde is a “spouse” within the meaning of the Act which would then determine how the application and counter-application would proceed.

THE SUCCESSION LAW REFORM ACT, R.S.O. 1990 AND THE POSITION OF THE PARTIES

[11] The parties agree that the applicable legislation governing the disposition of this matter are Sections 57 and 58 of the Act. The relevant definitions, applicable to the circumstances of this case are as follows:

57. In this Part,

“cohabit” means to live together in a conjugal relationship, whether within or outside marriage; (“cohabiter”)

“dependant” means,

(a) the spouse of the deceased,

(b) a parent of the deceased

(c) a child of the deceased, or

(d) a brother or sister of the deceased,

to whom the deceased was providing support or was under a legal obligation to provide support immediately before his or her death;(“personne à charge”)

“spouse” means a spouse as defined in subsection 1(1) and in addition includes either of two persons who,

(a) were married to each other by a marriage that was terminated or declared a nullity, or

(b) are not married to each other and have cohabited,

(i) continuously for a period of not less than three years, or

(ii) in a relationship of some permanence, if they are the natural or adoptive parents of a child. (“conjoint”)

[12] Section 58 permits the court to make provision for a dependant from the estate of the deceased under the following terms:

58. (1) Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them. R.S.O. 1990, c. S. 26, s. 58(1).

[13] Based on the above legislation, Ms. Lalonde’s claims for support from the estate of the deceased rests on her being able to establish that she was a “dependant” within the meaning of that Act. The deceased and Ms. Lalonde were never legally married. Nonetheless, Ms. Lalonde claims, that she was the “spouse” of the deceased at the time of his death, within the meaning of the Act because, immediately before his death, the deceased and she had cohabited “continuously for a period of not less than three years”. With the deceased having died on August 11, 2012, Ms. Lalonde must show that she and the deceased cohabited continuously since at least August 11, 2009.

[14] The Respondents do not contest the fact that at the time of their father’s death, Ms. Lalonde was cohabiting with the deceased. However, they dispute the duration of that cohabitation. It is their position that the cohabitation only commenced in October or November of 2010, resulting in a period of continuous cohabitation of less than the legislatively required three year period. They therefore take the position that she cannot be considered a “spouse” and hence a “dependant” within the meaning of the Act and that her claims ought to be dismissed.

THE EVIDENCE CONCERNING THE COHABITATION

[15] Both parties presented affidavit evidence in support of their position. From the evidence the following facts can be found. Ms. Lalonde and the deceased met “online” in February of 2006 and then face to face for the first time in March of 2006.

[16] When Ms. Lalonde, who is now 61 years old, met the deceased she was divorced and a mother of 4 adult children. She lived in an apartment in Montreal. She was employed for her father’s engineering company, Libby Engineering, as a secretary, earning approximately $20,000 per annum. She had had this job since the early 1980s.

[17] When the deceased met Ms. Lalonde he was a widower and had been for a number of years. He lived in his own home at 2865 Front Road in Hawkesbury, Ontario which he acquired in 1983 as a joint tenant with his then wife, the mother of his three children, the Respondents. At the time of his death the deceased had not made any changes to the title of the property.

[18] It was Ms. Lalonde’s evidence that once she met the deceased face to face in 2006, they began to see each other weekly or bi-weekly, either in Hawkesbury, where the diseased lived or in Montreal, where Ms. Lalonde lived. They would stay in each other’s homes. By the summer of 2006, the deceased and Ms. Lalonde were romantically involved. Their relationship continued in this way, each maintaining their own residences in Hawkesbury and Montreal respectively, for a number of years.

[19] It was the evidence of Ms. Lalonde that at the end of May of 2009 there was a change. She gave up her apartment in Montreal at 1435-A Rue de Champigny, and moved all of her belongings and furniture to the home of the deceased in Hawkesbury. According to Ms. Lalonde, as of May 30, 2009 she commenced cohabiting with the deceased in his home in Hawkesbury and continued to do so until his death. It is noted that paragraph 5 of her Affidavit, dated September 27, 2012, Ms. Lalonde states that she and the deceased resided together at 2865 Front Road in Hawkesbury “since the beginning of the month of July, 2009, when I gave up my apartment in Montreal to move in with Patrick”.

[20] As part of the evidence, which was not challenged, there are affidavit’s from various members of Ms. Lalonde’s family testifying to assisting her and her son, Charles, move all of Ms. Lalonde’s belongings and furniture on May 30, 2009 from Ms. Lalonde’s apartment in Montreal to the deceased’s home in Hawkesbury. It was their understanding that, as of that date, Ms. Lalonde would be permanently residing with the deceased. This was the evidence of Marie Lalonde, Ms. Lalonde’s sister, Pascal Fatigati, Ms. Lalonde’s brother-in-law, and Jean Lalonde, Ms. Lalonde’s brother.

[21] Mr. Jean Lalonde produced a U-Haul invoice dated May 30, 2009, for the rental of a U-Haul truck. He paid for the rental with his credit card since he was the driver of the vehicle. A careful examination of this invoice shows that the vehicle was rented for one day on May 30, 2009 (a Saturday) to be returned on May 31, 2009 (a Sunday). The U-Haul rental and invoice was obtained on line with no signature. While the client’s name shows Ms. Lalonde, it was her brother, Jean Lalonde, who rented the vehicle and who drove it to Hawkesbury. Jean Lalonde’s address, telephone number, driver’s licence number and date of birth appear on the U-Haul contract.

[22] The Respondent, Patrick Jason Menard, does not contest that Ms. Lalonde moved her belongings and furniture to his father’s home “on or about” May 30, 2009. However, it is his position that his father was merely permitting her, as his friend, to store the furniture in his garage.

[23] He explains his reason for this conclusion in paragraphs 19 and 20 of his Affidavit dated November 16, 2012 as follows:

19. On or about my birthday May 30th 2009, father contacted me to wish me happy birthday. During our conversation, my father indicated that he needed some storage space in the garage for a friend who needed to store furniture. Since throughout university the three children stored countless furniture and belongings in the garage, he felt compelled to inform me that he needed to make some room for storage.

20. I believe that the Applicant stored her belongings in my father’s garage on or about May 30th 2009. In fact, on August 15, 2012, when I attended his residence, by brother-in-law, Paul Smith, took a picture and a video of the garage where most of her belongings are still in storage.

[24] Patrick Jason Lalonde’s birthday is May 29, 2009 and in Discovery, he indicated that his father had tried to reach him on a few occasions during that time, May 29th or 30th and that it might have been that day or two after his birthday that his father indicated to him that he needed storage space for a friend in the garage.

[25] Ms. Lalonde also provided evidence (exhibit #5) that on March 29, 2009, she received notice from her landlord that the rent on the lease for her Montreal apartment which ran until June 30, 2009 was to be increased. On March 29, 2009, she informed her landlord that she would not be renewing her lease. According to Ms. Lalonde, this reflects her intention to shortly commence cohabiting with the deceased on a permanent basis.

[26] While Ms. Lalonde gave notice that she did not intend to renew the lease on her Montreal apartment after June 30, 2009, there is evidence to show that Ms. Lalonde’s son, Charles, who had lived with her in that apartment for a period of time remained living in the apartment after she left (exhibit #1). Charles’ cellular telephone number is indicated on that exhibit, the significance of which will be discussed later.

[27] In 2009, the deceased was employed with the Township of East Hawkesbury and continued to be so employed until his death. His income tax returns for the years 2009, 2010 and 2011 show that, in addition to employment income received from the Township of East Hawkesbury, the deceased received some pension income.

[28] It was the evidence of Ms. Lalonde that she continued working for her father’s company after her move to Hawkesbury. Her letter of termination and employment record with her father’s company was provided at Discovery. While she formally terminated her employment with her father’s company in September of 2009, Ms. Lalonde continued to help him out, doing such things as invoicing or letters from her home computer and home fax, for which she was not paid. In doing this she also often travelled between Hawkesbury and the site of Libby Engineering for the short period of time the company was located in Vankleek Hill (from November, 2009 to December, 2010). Before 2009, Libby Engineering was located in Montreal. After December, 2010 the company returned to Montreal (exhibit #2).

[29] There was much evidence and time spent on this motion relating to facts about cellular telephones, home telephones and facsimiles (see Affidavit of Patrick Jason Menard, dated November 16, 2012, tab I and Discovery of Patricia Lalonde on November 20, 2012). The Respondents take the position that these records show that Ms. Lalonde was not living with the deceased in Hawkesbury but in Montreal until late in 2010. I disagree. When this evidence is examined in conjunction with all of the other evidence, including the answers of Ms. Lalonde during her Discovery about communication with her family and her work for her father’s company, I am not persuaded that they prove in any way that Ms. Lalonde must have been living in Montreal until late 2010.

[30] There was evidence about when Ms. Lalonde and the deceased came in contact with their respective children and extended family. Ms. Lalonde testified that her children and her siblings met the deceased early on in their relationship, beginning in 2006. Her children who lived elsewhere visited them in Hawkesbury as did her sister and brother. The deceased also met her parents in St. Eugene where they lived.

[31] Ms. Lalonde’s recollection of meeting the deceased family was perhaps once in 2007 and in 2008 in Hawkesbury. She saw them at other times in 2009 and 2010.

[32] In her affidavit material (dated August 30, 2012 and September 27, 2012) Ms. Lalonde provided evidence that to her observation, since she began spending time with the deceased, with the exception of Patrick Jason Menard, the deceased’s children rarely visited their father in Hawkesbury. She recalls Karina and Kristine would “visit once per year for a day or briefly at Christmas”. She did not recall the Respondents, Norma and Allen Moore, ever attending at the deceased’s home in Hawkesbury. She recalled first seeing them at the time of the deceased’s death. With respect to Patrick Jason Menard, Ms. Lalonde recalls that he was a regular visitor during the summer months and was always welcomed in their home.

[33] As revealed in their questioning during Discovery, the recollection of the Respondents, about when and where they met Ms. Lalonde was slightly different but not completely different from recollection of Ms. Lalonde, and not consistent amongst the Respondents. Norma Moore, the sister of the deceased, recalled that the first time she met Ms. Lalonde was some time possibly in the summer 2008 when the deceased stopped by her house, at the time, in Hawkesbury to introduce Ms. Lalonde as his “new girl”. Norma Moore also recalls visiting with the couple in the deceased’s home in Hawkesbury latter that same year. Norma Moore testified that she then did not see her brother and Ms. Lalonde for three years until they met at the hospital shortly before the deceased’s death.

[34] Allen Moore, the spouse of Norma Moore, gave evidence that the first time he met and saw the deceased and Ms. Lalonde together was in May or June of 2010 when they attended as a couple his wife’s 70th birthday party in July in Beaconsfield. The next time he saw Ms. Lalonde was at the hospital before the deceased passed away.

[35] The deceased’s daughter, Kristine Smith gave evidence that the first time she met Ms. Lalonde was some time in the summer of 2007, when she attended her father’s home in Hawkesbury to celebrate her father’s birthday. Her first clear memory was in 2008 after she and her husband, Paul Smith, moved to Kanata and her father and Ms. Lalonde visited their new home. Kristine Smith also recalled a conversation with Ms. Lalonde at her father’s house at Christmas of 2009 bout her working in Montreal and coming to Hawkesbury on weekends. By Christmas of 2010, Kristine Smith recalls her father’s home furniture and furnishings being changed, extra furniture and a different fridge. According to Ms. Kristine Smith there was only any indication that Ms. Lalonde was there on a permanent basis in 2010. Her understanding during 2007, 2008, and 2009 was that Ms. Lalonde was merely her father’s girlfriend at the time. However, she respected his privacy and never had any discussions with her father about this.

[36] Paul Smith gave evidence that he first met Ms. Lalonde at the deceased’s home in Hawkesbury at Christmas time in 2009. He was not aware at the time that she lived in the house. His evidence was that he next met Ms. Lalonde at Christmas of 2010. It was his evidence that Ms. Lalonde arrived in Hawkesbury to live permanently with the deceased in 2010. Because when he was at his father-in-law’s home at Christmas time of 2010, Ms. Lalonde “was quite comfortable in the home” but he still did not know that she lived there. Paul Smith confirmed that he would visit his father-in-law usually at Christmas and sometimes in the summer but not often.

[37] Patrick Jason Menard testified that he probably met Ms. Lalonde for the first time in 2008 at his father’s home in Hawkesbury on a weekend. During that year he saw her maybe once or twice. Since that time he would see her a few times “here and there but not frequently”. It was his evidence that before 2009 he would visit his father’s home pretty much every weekend because he still had many friends in Hawkesbury. But in 2010, when he understood Ms. Lalonde to have moved in with her father, he did not go as often so as to not be a nuisance to his father. According to Patrick Jason Menard at Christmas time of 2009 nothing had changed in his father’s home. His dad went to visit friends. He first saw Ms. Lalonde’s furniture and furnishing stored in his father’s garage in the summer of 2009.

[38] Karina Menard, the daughter of the deceased, recalled first meeting Ms. Lalonde in June of 2009 at her father’s birthday party in his home in Hawkesbury. She was aware at that time that her father had been seeing Ms. Lalonde since 2006. By June 2009 Karina Menard understood her father and Ms. Lalonde to be a “couple”.

[39] According to Ms. Lalonde, once she began to cohabit with the deceased they shared their revenue as would any married couple. Both their revenues were used to purchase food and groceries, pay for home and garden maintenance, travel and extended vacations and other miscellaneous expenses. They did not really discuss their respective financial circumstances. They shared buying things as the need arose.

[40] According to Ms. Lalonde she generally took care of the car expenses because they used her car. The deceased had a jeep but did not use it because it required expensive repairs.

[41] The evidence shows that Ms. Lalonde applied, in 2009, for a temporary Driver’s Licence from the province of Ontario which had an effective commencement date of June 3, 2009 and an expiry date of October 3, 2009. Her address on that temporary Driver’s Licence is shown to be 2865 Front Street. Ms. Lalonde was issued a permanent Ontario Driver’s Licence on August 10, 2009 expiring on June 2, 2014. Ms. Lalonde also provided evidence of temporary motor vehicle liability insurance obtained by her on July 6, 2009, showing her address as the deceased’s home on Front Road in Hawkesbury.

[42] With respect to the repair and maintenance of the deceased’s Hawkesbury property, according to Ms. Lalonde, they shared the costs as needed and as they were able. On Discovery Ms. Lalonde elaborated on how she and the deceased shared the cost of doing some modest renovations to the kitchen of the Hawkesbury home such as a new countertop and new appliances and some new furniture, which she believed was done in June of 2010. Ms. Lalonde gave evidence that she paid cash, around $800 to a friend with a truck who could get the material for the renovations. According to Ms. Lalonde she also paid for a sofa and chair, a fridge and dishwasher and gave the deceased cash when they went together to purchase these items around the same time as the kitchen renovations. There were also new patio doors installed with a help of a friend at a cost of approximately $1,500. Ms. Lalonde’s banking statements, filed as exhibit #3, about which I shall say more later, appear to support Ms. Lalonde’s evidence that she contributed to this work and purchases by withdrawing cash from her account to help pay for them. These appear as uncharacteristically large cash withdrawals from her bank account.

[43] The evidence showed that during their cohabitation the deceased and Ms. Lalonde never has any joint bank accounts. The deceased had two Royal Bank accounts in his own name. All of the household bills, such as the hydro, gas and cable were all in the name of the deceased and paid for by him. No evidence of any joint purchases were found among the deceased’s documents. For the Respondents this is evidence that their father and Ms. Lalonde were financially independent of each other.

[44] Ms. Lalonde had a savings account at the Royal Bank and a chequing account at the BMO in Montreal. She continued to use these two banks in the same way when she moved to Hawkesbury. On Discovery Ms. Lalonde was asked to produce her banking records from January 2009 to the present. Redacted records from her two bank accounts from these two institutions were produced by her but not all the Records requested were provided. What was provided was filed as exhibit #3 and included Royal Bank documents dating from January 2006 to November, 2010, BMO documents dating from January, 2007 to December 2009. The Documents from the Royal Bank are a Personal Deposit Account History. From these it is impossible to know the address used by Ms. Lalonde when she originally received these statements. All of the statements are sent from the Royal Bank of Canada in Pointe-Claire, QC. Without further evidence it is also impossible to determine many of the locations where Ms. Lalonde may have used her Royal Bank account, which transactions can be done at many locations. Some locations may be identifiable such as the Station Central, presumably in Montreal.

[45] With respect to the BMO statements and the transactions which appear on those statements, the same is true with the exception of some identifiable locations such as a metro or train stations. In my view, based on all of these bank statements, it is impossible to determine the location of Ms. Lalonde or even a pattern of location of Ms. Lalonde with any certainty. Furthermore, frequent visits to Montreal where one has many family members, where one is, no doubt, welcome to stay for a number of days, and where one has had many ties, including employment with family members, does not necessarily exclude the possibility that one may be cohabiting with someone elsewhere.

[46] It is noted, however, that from January, 2007 to August, 2009, the BMO statements are addressed to Ms. Lalonde at her 1435 Rue De Champigny, Apartment A, Montreal, Quebec address. Thereafter the BMO statements are addressed to her at the deceased’s home at 2865 Front Rd. in Hawkesbury.

[47] Ms. Lalonde formally terminated her employment with her father’s company in September of 2009. This fact is to be noted but has to viewed in the context of the other evidence that indicated that Ms. Lalonde’s responsibilities with this company could and were fulfilled from her own home computer, wherever that computer might be found. It did not necessitate her living in Montreal or away from Hawkesbury. In fact, as seen from the evidence about the various locations of the business, it appears that living in Hawkesbury was convenient and permitted Ms. Lalonde to continue to do work for her father’s company and to attend at the business’ location in Vankleek Hill while it remained there.

[48] Ms. Lalonde has her own Visa credit card with the Royal bank but seldom uses it, preferring to use cash or bank debits as a method of payment. She and the deceased never held any joint credit cards. They did not incur any joint debts during the period of cohabitation. They never took out any life insurance policies on each other’s life. According to Ms. Lalonde the deceased did not believe in such insurance. There was evidence to show that the estate of the deceased received on September 11, 2012 the amount of $2,000.42 on a life insurance claim from an OPSEU Pension Trust. There was an additional amount of $1,273.95 received from that fund payable to the estate.

[49] There were a number of income tax returns for both the deceased and Ms. Lalonde presented in evidence. Their respective 2009 returns and notices of assessment were separately done and made no reference to each other. For the year 2009 the deceased declared his marital status to be “veuf” (“widower”). For that same year Ms. Lalonde declared her marital status to be “divorced”.

[50] For both the year 2010 and 2011, the year of the deceased died, each of them declared their marital status to be “conjoint de fait” (“common law”). Furthermore, for those two years the deceased requested on line 115 of his income tax return that there be a “split pension account transferred from himself (a pension income received by him) to Ms. Lalonde in the amount of approximately one half his pension income at $13,568 (see also lines 210 of the 2010 and 2011 income tax returns for the deceased (“Déduction pour le montant de pension fractionné”).

[51] In order to affect this pension income splitting, the deceased and Ms. Lalonde jointly signed on September 12, 2011, a declaration that they had “been living as a common law couple since July 2009” (exhibit #4). It was Ms. Lalonde’s explanation that this declaration was not done for their 2009 income tax returns because they had not cohabited for all of the year 2009.

[52] The Goods and Service Tax credit received by the deceased for the years 2008, 2009 and 2010 (and not 2009, 2010 and 2011 as stated in the Affidavit of Patrick Jason Menard dated September 25, 2012) designates his marital status for those years to be “widowed”. It is not clear from the evidence who completed and submitted these.

[53] Ms. Lalonde does not have a will nor has she designated anyone as her Power of Attorney. The deceased’s will dates to 1998. No change to it was ever made by him since that time. The Respondents, his three children, are named as the executors of his will and the sole beneficiaries of his estate. The three children are also named the sole three beneficiaries of a Retirement Savings Plan taken out by the deceased with the Royal bank, on February 25, 2010 which had a value of $4,075.38 at the time of his death. In March, 2011 the deceased began making contributions to his retirement plan with OMERS. On April 21, 2011 he designated his three children as equal Primary Plan Beneficiaries.

[54] The Respondent, Norma Moore, the deceased’s sister, was the deceased’s Power of Attorney for his personal care at the time of his death.

[55] Ms. Lalonde has made an application to the OMERS insurance program to which the deceased was entitled based on his past employment with the government of Ontario for receipt of benefits as an “eligible spouse”. That application is pending.

[56] Finally, the Respondents have presented in evidence, some notes made during a hospital social work assessment at the Ottawa Hospital , where the deceased was being treated at the time Those notes identify Ms. Lalonde as the common law partner of the deceased as well as the other members of his family. The notes indicated that Ms. Lalonde has been the common law partner of the deceased “for approximately 2 years”. A 2-year cohabitation period is repeated again later in the assessment along with the statement that the deceased is supported by Ms. Lalonde. Ms. Lalonde reported to the social worker that her relationship with the deceased’s children have been “up and down, indicating that his children haven’t had a lot of contact with him/are not involved in his life (see their father approximately 1-2 times a year).” Ms. Lalonde also indicated that she and the deceased “have a very close and loving relationship”. Ms. Lalonde also identified some frustrations and problems between herself and the deceased’s children regarding who would direct the care of the deceased at the hospital. It is also evident from that report that Ms. Lalonde appeared to know quite a lot about the deceased’s family and medical history. It is also interesting that the social worker met with Ms. Lalonde to complete the social work assessment and not another member of the deceased’s family.

[57] This information about the period of cohabitation appearing in this social work assessment would appear to be contradictory to Ms. Lalonde’s stated position in this matter and cannot be ignored. However, in the final analysis a statement of “approximately two years” made at a time of stress needs to be considered and weighed along with all the other evidence which will be discussed below.

JURISPRUDENCE ON THE MEANING OF COHABITING IN A CONJUGAL RELATIONSHIP

[58] The Respondents accept that Ms. Lalonde cohabited with the deceased in a conjugal relationship but only after October or November of 2010. Counsel did not present the court with much jurisprudence on the question of the meaning of cohabiting in conjugal relationship. Counsel for the Respondents did assist the Court by presenting the case of Molodowich v. Penttinen 1980 1537 (ON SC), [1980] O.J. No. 1904 (Dist. Ct.). On the facts of that case Kurisko J. had to decide whether a living arrangement between the parties, which had lasted a number of years, was merely a type of sublease arrangement or a cohabitation in a conjugal arrangement. Kurisko J. decided it was the latter. In coming to his decision Kurisko J. examined the caselaw and found that the consideration of certain factors in the circumstances of a case might assist the court in coming to its decision, concluding that the extent to which different elements may be taken into account will vary with the individual circumstances of each case. At paragraph 16 of his decision Kurisko J. lists those factors as follows:

16 I propose to consolidate the statements just quoted by considering the facts and circumstances of this case with the guidance of a series of questions listed under the seven descriptive components involved, to varying degrees and combinations, in the complex group of human inter-relationships broadly described by the words "cohabitation" and "consortium":

(1) SHELTER:

(a) Did the parties live under the same roof?

(b) What were the sleeping arrangements?

(c) Did anyone else occupy or share the available accommodation?

(2) SEXUAL AND PERSONAL BEHAVIOUR:

(a) Did the parties have sexual relations? If not, why not?

(b) Did they maintain an attitude of fidelity to each other?

(c) What were their feelings toward each other?

(d) Did they communicate on a personal level?

(e) Did they eat their meals together?

(f) What, if anything, did they do to assist each other with problems or during illness?

(g) Did they buy gifts for each other on special occasions?

(3) SERVICES:

What was the conduct and habit of the parties in relation to:

(a) Preparation of meals,

(b) Washing and mending clothes,

(c) Shopping,

(d) Household maintenance,

(e) Any other domestic services?

(4) SOCIAL:

(a) Did they participate together or separately in neighbourhood and community activities?

(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5) SOCIETAL:

What was the attitude and conduct of the community towards each of them and as a couple?

(6) SUPPORT (ECONOMIC):

(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

(b) What were the arrangements concerning the acquisition and ownership of property?

(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7) CHILDREN:

What was the attitude and conduct of the parties concerning children?

To the foregoing must be applied the following caveat of Mr. Justice Blair in the Warwick case (supra):

"The extent to which the different elements of the marriage relationship will be taken into account must vary with the circumstances of each case."

ANALYSIS

[59] After examining all of the facts of this case with reference to the above jurisprudence, I must conclude, on the balance of probabilities, that Ms. Lalonde cohabited continuously with the deceased in a conjugal relationship from approximately May or June of 2009, and hence cohabited continuously with him in a conjugal relationship for a period of not less than three years immediately preceding his death. My reasons for coming to this conclusion are the following.

[60] The physical move of her furnishings and furniture to the deceased’s home at the end of May, 2009 is persuasive evidence that the deceased and Ms. Lalonde intended to live under the same roof and did live under the same roof on a permanent basis at or about that date. This is supported by the fact that Ms. Lalonde had given up her Montreal apartment as of March of that same year. The fact that her lease on the Montreal apartment lasted until the end of June and that her son, Charles may have taken over the lease on the Montreal apartment for another year or so does not change the fact that as of May 30, 2009, Ms. Lalonde had brought to the deceased’s home all of her worldly belongings and by the end of the following month had no legal claim to any alternate accommodation beyond the end of June, 2009. In my view this fact puts in context Ms. Lalonde’s statement in paragraph 5 of her September 27, 2012 Affidavit which I do not consider a contradiction to her position.

[61] Sometime in the spring of 2009 Ms. Lalonde applied for temporary Ontario driver’s licence, which licence became effective on June 23, 2009 and bore the address of the deceased’s Hawkesbury home. A permanent licence followed. The timing of the receipt of this temporary driver’s licence along with the move of Ms. Lalonde’s belongings to the home of the deceased at the end of May is significant and revealing to determining the commencement of the cohabitation of the couple.

[62] I was not convinced that the move of Ms. Lalonde’s furnishings and furniture to the deceased’s property was for storage purposes only, as claimed by the Respondent, Patrick Jason Menard. On Discovery, his explanation of why he believed it was merely his father doing a kindness for a friend was rambling and evasive. Furthermore, the fact that she still had some of her belongings stored in the deceased’s garage in August 15, 2012 is not determinative of anything, especially since it was conceded by the Respondents that at the time of the deceased’s death Ms. Lalonde could definitely be considered the deceased’s common-law spouse.

[63] The conclusion that the deceased was merely rendering Ms. Lalonde a kindness, as a friend, to allow her to store her belongings at his home, is also inconsistent with other evidence relating to the nature of the relationship between the deceased and Ms. Lalonde even as early as 2009.

[64] Ms. Lalonde’s evidence was that she and the deceased began a romantic relationship as early as the summer of 2006. Two years later, they are still spending a lot of time together and introducing each other to their respect families and children. As the evidence revealed, a number of Respondents first met Ms. Lalonde in 2008. She was there for substantial family celebrations.

[65] Kristine Smith testified that for the years 2007, 2008 and 2009 she thought Ms. Lalonde was just another of her father’s girlfriends, because there had been others before her. She did not discuss this with her father. But, in fact, there were no others, after the deceased met Ms. Lalonde in 2006.

[66] Karina Menard testified that by June of 2009 she understood her father and Ms. Lalonde to be “a couple”. There is no question that from the social work assessment from the Ottawa Hospital Ms. Lalonde presented as a concerned, loving and dedicated common-law partner at the time of the deceased’s hospitalization prior to his death, one who was seeking her own accommodation near to the deceased while he remained in the hospital so that she could be close by.

[67] Paul Smith testified that even as late as Christmas of 2010 he did not know that Ms. Lalonde was living in the home of the deceased but that she seemed “quite comfortable in the home” at that time, even though other Respondents seemed to know that Ms. Lalonde was living with the deceased at that time. Paul Smith was not able to testify to when Ms. Lalonde first became “quite comfortable in the home”.

[68] Nor, could many of the other Respondents shed light on this fact, for that matter. Their own evidence, confirmed by that of Ms. Lalonde, indicated that most of the Respondents, with perhaps the exception of Patrick Jason Menard, visited the deceased at his home infrequently, only once or twice per year. They respected the deceased’s privacy and did not appear to discuss or to want to discuss the matter with the deceased. As a result, the ability of most of the Respondents to observe directly the full nature and duration of the relationship between the deceased and Ms. Lalonde was limited.

[69] Because of the limited capacity of the Respondents to observe the cohabitation of the deceased and Ms. Lalonde, one only has the evidence of Ms. Lalonde as to the nature of the relationship between herself and the deceased. Unlike in the case before Kurisko J. there is no other evidence about how the couple regarded themselves, whether there were sexual relations, what were their feelings towards each other, how did they communicate, whether and how they assisted each other with problems, whether they purchased gifts for each other or for each other’s family, who did what work around the house and what, if any domestic services they did for each other. We have only the evidence of Ms. Lalonde and evidence of her conduct at the time of the deceased’s death.

[70] Also because of the limited capacity of the Respondents to observe the cohabitation of the deceased and Ms. Lalonde they are not able to contradict Ms. Lalonde’s evidence that when she began living with the deceased she and the deceased shared their revenue to purchase food, garden and home expenses as the need arose and travel, vacation and miscellaneous expenses such as the use of her car. The Respondents have confirmed that the deceased’ jeep at the time of his death was inoperable.

[71] There is no question on the evidence that the deceased earned the superior income and that he continued to pay all of the expenses, such as gas, hydro and cable and I presume property taxes, relating to his property. Nor is it surprising that the deceased remained principally responsible for all of the other major expenses relating to a property which remained in his sole name. There is no requirement that common law spouses share all of the couple’s expenses equally, far from it.

[72] The fact that the deceased continued to pay for all of the property related expenses, does not necessarily exclude the possibility that the deceased and Ms. Lalonde shared their other day to day expenses and other expenses, such as, the new furniture and the renovations to the deceased’s home in the manner described by Ms. Lalonde. In fact Ms. Lalonde’s bank records support the evidence she gave about the home renovations and the couple’s new furniture. It appears from those bank records that Ms. Lalonde was purchasing lumber in Hawkesbury in October of 2009, with other major cash payments to furniture companies and lumber companies occurring in the summer of 2010 about which she gave evidence.

[73] While evidence of joint bank accounts, joint debts and joint credit cards might be helpful in any set of circumstances in determining the issue before the court, their absence alone cannot determine the issue. Their absence does not render implausible and unbelievable the financial sharing of those expenses identified by Ms. Lalonde in her evidence. Nor does their absence rule out the fact of cohabitation commencing as early as May or June of 2009.

[74] Furthermore, it is not uncommon for older individuals, who commence a new relationship in their older years to intend to and to want to protect their assets for the benefit of their own respective children. It is even fair to assume that that is what the deceased intended when he designated his three children, equally, as the executors and beneficiaries of his estate and all of his employment benefits. He did not, in any way, change his will or other ownership documents after he commenced cohabiting with Ms. Lalonde. Even after he commenced living with Ms. Lalonde, the deceased continued to want his three children to benefit equally from his employment benefits. Ms. Lalonde also made no change to her situation in that regard vis-à-vis the deceased. This does not, however, assist in determining the question of the commencement of the cohabitation in this matter. While the intention of a deceased to benefit certain individuals upon his death, may be a factor to consider in determining whether parties cohabit in a conjugal relationship, it is not, in and of itself, determinative of the issue, if all of the circumstances of the case prove otherwise.

[75] Unfortunately, the deceased is not able to shed light on the question before the Court. However, there is one document in which the deceased along with Ms. Lalonde made an official declaration as to how long Ms. Lalonde and he cohabited. This was, of course, exhibit #4, the document, dated September 12, 2011, sent to the Canada Revenue Agency, declaring that he and Ms. Lalonde had been living “as a common law couple since July 2009”. This document was clearly intended so that the deceased and Ms. Lalonde could take advantage of certain income tax savings and to permit Ms. Lalonde to share equally in the deceased’s pension income. It was followed by them respectively declaring on their 2010 and 2011 income tax returns that their status was “conjoint de fait”.

[76] I find this document, along with all the other evidence just mentioned, very persuasive in coming to my decision that the cohabitation commenced in the months of May or June of 2009. Firstly, it is the only evidence which comes directly from the deceased. Secondly, it is consistent with much of the other evidence concerning Ms. Lalonde’s history of the relationship, her move and all of the corollary actions she took to effect that move, such as the termination of her Montreal apartment lease, the application for a temporary Ontario Driver’s licence, the official termination of her employment and the change to her BMO bank account. It is also consistent with her evidence indicating that upon cohabitation, she and the deceased shared their revenues and expenses as the need arose and as she described.

[77] That they would take advantage of this income tax savings is consistent with them regarding themselves as a couple for financial and economic reasons in accordance with what was permitted by law, at least as far as income-splitting is concerned. The content of that declaration, including the date on which the couple indicated they commenced cohabiting, must be taken as it appears and as the truth since the deceased and Ms. Lalonde were presumed to be truthful in making such a declaration. Indeed, they followed up on this declaration, as seen in their 2010 and 2011 income tax returns.

[78] I find the fact that neither of them declared themselves to be in a common law relationship for the year 2009 in their respective income tax returns for 2009 insignificant. Having been cohabiting for only the latter part of 2009, it would have been untruthful to declare that status for the whole of that year which appears to be what is asked for in that form.

[79] For all of the reasons given above, I find Ms. Lalonde to be a “spouse” within the meaning of Section 57 of the Act.

M. Linhares de Sousa J.

Released: February 5, 2013

L’ORIGNAL COURT FILE NO.: 717-2012

DATE: 2013/02/05

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

PATRICIA LALONDE

Applicant

– and –

NORMA MOORE, ALLEN MOORE, PAUL SMITH, KRISTINE SMITH (NÉE MENARD), PATRICK JASON MENARD, KARINA MENARD and the ESTATE OF THE LATE LOUIS PATRICK MENARD

Respondents

REASONS on MOTION

M. Linhares de Sousa J.

Released: February 5, 2013