COURT FILE NO.: 2611-03

DATE: 20131216

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

LUNDY LEE ROSSETER

Applicant

• and -

JOHN STUART ROSSETER

Respondent

Hugh McLachlan, Counsel for the Applicant

William Sangster, Counsel for the Respondent

HEARD: August 15 and November 19, 2013

ellies j.

INTRODUCTION

1The primary issue in this trial is the determination of the valuation date for equalization of the parties’ net family property under section 5 of the Family Law Act (“the Act”). Mrs. Rosseter contends that the date is February 26, 2009. Mr. Rosseter maintains that June 1, 2001 is the proper date. If Mr. Rosseter is correct, then a second issue arises, namely, whether the six-year limitation period prescribed by section 7(3) of the Act for bringing a claim for equalization should be extended under section 2(8).

2For the following reasons, I have concluded that the valuation date is February 26, 2009.

OVERVIEW OF THE EVIDENCE

3The parties were married on June 23, 1973. They lived together in a home on Main Street West in North Bay from 1980 until May or June of 2001. They separated for short periods of time on a few occasions prior to that date, when Mrs. Rosseter left the matrimonial home to stay with family members. She returned to the matrimonial home on each occasion. However, in May or June of 2001, she left the matrimonial home to live with her parents and a number of months later she rented her own apartment. From that date to the present, the parties have maintained separate residences. Mr. Rosseter continues to reside in the matrimonial home.

4Both parties agree that Mrs. Rosseter left in 2001 due to Mr. Rosseter’s severe problem with alcohol. They disagree about whether they were separated at that point. Mrs. Rosseter submits that the parties did not separate until February 26, 2009. Alternatively, she argues that, if they were separated, it was only for the period of time after she left the matrimonial home in 2001 until the spring of 2003, when the parties reconciled.

5After Mrs. Rosseter left the matrimonial home, Mr. Rosseter took steps to resolve his drinking problem. He was unsuccessful at first. However, he eventually enjoyed success through Alcoholics Anonymous. Mrs. Rosseter testified that, early in 2002, Mr. Rosseter asked her to give him a year to focus his efforts on rehabilitation. Although Mr. Rosseter testified that it was Mrs. Rosseter who wanted nothing to do with him during that period, he also admitted that he was thinking only about “correcting (his) deficiencies” at that point in his life.

6There is no disagreement between the parties that there was much less contact between them during that period of time than there was in the period after the spring of 2003, when Mr. Rosseter says that he and Mrs. Rosseter “reconnected”. This period of time is to be contrasted with the period of time between 2003 and 2009, as I will highlight in the “Analysis” section, below.

7The parties also agree that there was no reasonable prospect of the resumption of cohabitation after February 26, 2009. After that date, the parties opened individual bank accounts and they each retained a lawyer to attempt to negotiate a resolution of the issues arising from the failure of their marriage. They were unsuccessful. The main stumbling block was the valuation date. That is the reason for this trial of an issue. The parties are hopeful that, once that date is determined, the rest will fall into place.

ANALYSIS

8Section 4(1) of the Family Law Act (the Act), defines “valuation date” as meaning the earliest of a number of dates, including:

The dates the spouses separate and there is no reasonable prospect that they will resume cohabitation.

Separation

9By virtue of this definition, separation and cohabitation are opposites: spouses who are not cohabiting are separated. Perhaps that is the reason why the word “separate” is not defined in the Act. The verb “cohabit” is defined in s. 1 of the Act as meaning:

To live together in a conjugal relationship, whether within or outside marriage.

10There is no distinction to be made between the noun, “cohabitation”, in s. 4 and the verb defined in s. 1: Pope v. Pope, (1999), 42 O.R. (3d) 514; [1999] O.J. No. 242 (Ont. C.A.) at para. 32.

11In order to determine if spouses were separated at a point in time, therefore, it is necessary to determine if they were cohabiting. This is done by examining the nature of the relationship between the parties, having regard to the presence or absence of various circumstances that normally exist where a couple cohabit. A great many of the cases that have considered the meaning of cohabitation are ones in which spousal support, as opposed to equalization, was at issue. Nonetheless, they are relevant because s. 29 of the Act defines “spouse” for support purposes as including either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years.

12Amongst the most frequently cited cases on the characteristics of cohabitation are the decisions in Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376; [1980] O.J. No. 1904 (Ont. Dist. Ct.), a support case, and in Oswell v. Oswell (1990), 74 O.R. (2d) 15; [1990] O.J. No. 1117 (Ont. H.C.), an equalization case. In Molodwich, Kurisko J. reviewed a number of cases and set out a categorized list of questions that might be answered in determining whether a couple is cohabiting: at para. 16 (O.J.). In Oswell, Weiler J. (as she then was) identified a number of indicia for couples who are not: at p. 3 (O.J.). In addition to these cases, I have been referred to a decision of the Pension Appeals Board from New Brunswick, namely: Betts v. Shannon, Appeal CP11654; 2001 LNCPEN 4, which also contains a helpful list of the attributes of parties who are cohabiting: at para. 8. In the analysis that follows, I will refer to many of the characteristics of cohabitation considered in these decisions, as well as in certain other cases to which I will refer specifically.

Maintaining Separate Residences

13The parties never resumed living under the same roof after Mrs. Rosseter left the matrimonial home in 2001. However, this is only one factor to be considered in the analysis. Just as parties can live separate and apart under the same roof, they can cohabit under different roofs. In McEachern v. Fry Estate, [1993] O.J. No. 1731 (Ont. Ct. (Gen. Div.)), Sheppard J. awarded the applicant support under the Succession Law Reform Act on the basis that she had cohabited continuously with the deceased for a period of not less than three years in circumstances where the parties never physically lived together at any time during their 15 year relationship. In Thauvette v. Malyon (1996), 23 R.F.L. (4th) 217; [1996] O.J. No. 1356 (Ont. Ct. (Gen. Div.)), Roy J. determined that the plaintiff was entitled to support under the Act as a “spouse” despite the fact that the parties never lived together over the course of a relationship that lasted for approximately ten years.

14Where the parties lived in separate residences, however, it is important to examine the other circumstances surrounding their relationship in order to determine whether they were, in fact, separated.

Reasons for Maintaining Separate Residences

15This factor was considered in Thauvette, at para. 33. In that case, the parties were each involved in other relationships when they first became involved with each other. Malyon was married. The parties maintained separate residences in order to keep their respective families separate.

16In this case, Mrs. Rosseter moved out because of Mr. Rosseter’s alcoholism. Initially, she rented on a month-to-month basis, even though there was enough time between her departure from the matrimonial home and the time at which she began to rent an apartment for her to find accommodation on a yearly lease basis. This supports her evidence that she was hopeful that the physical separation would be temporary, at least initially.

17As I will outline in more detail below, in the period after the parties reconnected in 2003, Mr. Rosseter visited regularly with Mrs. Rosseter at her place of residence. However, according to Mrs. Rosseter, Mr. Rosseter refused to move in with her because he did not “want to live in a box”. Mr. Rosseter testified he did not wish to give up the former matrimonial home. The home had been purchased from his parents. He had been raised there from the time he was a child of four years old. Following the parties’ physical separation, he began to renovate the home, partly for therapeutic reasons, and partly because the home was in need.

18For her part, Mrs. Rosseter testified that she refused to return to the matrimonial home, which she called a “House of Horrors”. By this, I understand that she had too many bad memories associated with it.

19Thus, each party had reasons for not wanting to live in the other’s place of residence that were unrelated to the presence of the other party.

Eating Meals Together

20Whether the parties prepared meals for one another or ate together are two circumstances often considered in the jurisprudence: see also Newton v. Newton (1995), 11 R.F.L. (4th) 251; [1995] O.J. No. 519 (Ont. U.F.C.); Hazlewood v. Kent, [2000] O.J. No. 5263 (Ont. S.C.). Mr. Rosseter admitted that the parties ate together “a couple” of times each week. These meals were usually eaten at Mrs. Rosseter’s place of residence, but also occasionally at restaurants. According to Mr. Rosseter, although Mrs. Rosseter did cook some meals, he often picked up take-out food to bring over to her residence.

Other Services Performed For One Another

21The provision of other household services such as washing clothes, cleaning, and shopping is another one of the circumstances referred to throughout the jurisprudence.

22Mrs. Rosseter testified that, although she did not personally clean the Main Street home after she left in 2001, she hired cleaners to do so. Mr. Rosseter was candid in admitting that this may have occurred in the period of 2001 to 2003 and that he might not remember it as a result of the battle he was waging with alcoholism at the time.

23After 2003, the parties shopped from time-to-time for groceries together, despite the fact that they did not do so before 2001.

Presence of Personal Items at the Other Party’s Residence

24This was a circumstance the court considered in Hazlewood and the Appeal Board listed in Betts.

25In the case at bar, Mrs. Rosseter purchased pyjamas and underwear for Mr. Rosseter’s use while at her residence. Although Mrs. Rosseter kept some of her clothing at the Main Street West home, it would appear that she never went back to retrieve those clothes.

Attending Social Functions Together

26Whether a couple engaged in social activities together is another common consideration in the cases to which I have referred.

27Between 2003 and 2009, Mr. and Mrs. Rosseter attended films, the theatre and golfed together on occasion. In addition to the social occasions they enjoyed alone with each other, they attended a number of social functions with others during that period of time. In 2003 and 2007, they attended as a couple at social functions related to Mrs. Rosseter’s employment. In 2004, they attended their nephew’s wedding, which included a golf tournament in which they golfed together.

28As shown in the photographs introduced into evidence by Mrs. Rosseter, the parties attended many other family functions together after 2003, as well.

Celebrating Special Occasions Together

29Celebrating special occasions together is another feature of cohabitation: see especially Newton, at para. 13; McEachern, at para. 9. Mrs. Rosseter testified that Mr. Rosseter bought her a gift for her birthday every year. In 2007, he bought her flowers. According to Mr. Rosseter, he asked Mrs. Rosseter at that time if they could pick up where they left off.

30In 2008, Mr. Rosseter gave Mrs. Rosseter a birthday card, a copy of which was introduced into evidence. In my view, the prose in the card he selected is relevant to the issues that I must consider. The outside of the card read:

For my wife

With all my love

Inside, the card read:

Even when I first met you,

I knew somehow that you

would be the love of my life.

And that’s exactly what you are.

No matter how many years go by,

I’ll still think of you as the person

I want to share everything with,

the person I most want to make

happy, the one without whom

life would never be the same.

You’re my world, my life,

my everything.

I love you with all my heart,

and I always will.

Helping Each Other During Difficult Times

31The parties did not just share happy times together after 2003. Mrs. Rosseter’s father died in 2008. Mr. Rosseter was with her throughout that period. According to Mrs. Rosseter, he stayed with her at her place of residence for approximately five nights. According to Mr. Rosseter, it may have been only one.

32In 2008, the parties lost two other family members, namely Mr. Rosseter’s mother and Mrs. Rosseter’s uncle. They attended those funerals and grieved those losses together, as well.

33In Taylor v. Taylor (1999), 5 R.F.L. (5th) 162; [1999] O.J. No. 5310 (Ont. S.C.), one of the circumstances taken into account by Whitten J. in determining the valuation date was the fact that the wife moved back into the matrimonial home to care for the husband after he broke his leg: at para. 27. In July of 2008, Mr. Rosseter severely injured his eye while at home. Rather than calling 911, he called Mrs. Rosseter. As he explained, he was concerned that the ambulance attendants might not be able to get into his home. Regardless of the reason, not only did Mrs. Rosseter attend and take him to the hospital, but she also then drove him down to the Eye Institute in Ottawa, for surgery. On their return to North Bay, Mr. Rosseter stayed one or two nights with Mrs. Rosseter at her place of residence. Since then, Mr. Rosseter concedes that Mrs. Rosseter may have driven him to Ottawa for a further seven visits relating to his eyes. While in Ottawa, the parties’ visited with their two sons.

Vacations Together

34This characteristic of cohabitation was listed in Betts, formed part of the facts in Oswell and figured prominently in McEachern.

35Mr. and Mrs. Rosseter travelled together to Florida on four occasions between 2003 and 2009. On two of these occasions, they spent about ten days together. On a third, they spent approximately four weeks together. On all of them, they slept in the same room.

36In addition to these longer vacations, the parties stayed together while visiting friends in the Muskokas on two occasions, and in Toronto on one.

37They took their last vacation together in February 2009. It was not their best. They separated shorty after their return.

Sexual Intercourse

38In virtually all of the cases to which I have referred, and in many more to which I have not, the courts have examined the degree to which the parties were intimate. In this case, Mrs. Rosseter testified that the parties had sexual intercourse on a regular basis from 2003 to 2009. Mr. Rosseter testified that there were periods of weeks and even months where the parties did not have sexual intercourse. This seems to have been the case towards the end of their renewed relationship, but not so much at the beginning. In any event, the parties both testified that sexual intercourse occurred on those occasions when they vacationed together, the last occasion being February 22, 2009. As well, I find that sexual intercourse did occur on a regular, if not frequent, basis while the parties were in North Bay. According to Mr. Rosseter, the parties had sexual intercourse on about a half-dozen occasions each year.

Fidelity to One Another

39In my view, one of the most significant indications of cohabitation is the “attitude of fidelity” the parties have to one another, as Kurisko J. put it in Molodowich (at para. 16, O.J.). When determining whether a couple are cohabiting, the frequency of sexual intercourse matters less, in my opinion, than the identity of the person with whom it occurred.

40There is no evidence in this case that either party had sexual intercourse with any individual other than the other party in the period between 2003 and 2009.

Financial Support

41In Newton, Czutrin J. placed particular emphasis on whether steps were taken to separate the parties’ financial affairs: see para. 47. Throughout the period of time at issue in this case, the parties maintained joint bank accounts. Mr. Rosseter testified that each of them used only one of the accounts. However, this appears to have been the situation throughout their entire marriage.

42Moreover, the evidence indicates that little, if anything, else changed after 2001 with respect to the parties’ financial arrangements. For example:

(a) The parties shared a joint safety deposit box.

(b) They both used a single Sears account.

(c) Mr. Rosseter made contributions to the RRSP’s of both parties between 2001 and 2009.

(d) Mrs. Rosseter is still named as the beneficiary on Mr. Rosseter’s life insurance policy.

(e) Mrs. Rosseter is still named as a beneficiary in Mr. Rosseter’s will.

Shared Use of Assets

43This was a consideration listed in Betts. In addition to the safety deposit box to which I have referred, there is evidence that Mr. and Mrs. Rosseter shared other assets. Mr. Rosseter had three different vehicles over the course of time, all of which he allowed Mrs. Rosseter to drive on a regular basis.

The Parties’ Behaviour Towards One Another in the Presence of Third Parties

44Most of the cases consider how the couple was viewed by third parties. Strictly speaking, this is opinion evidence and it is not admissible. What is important is the behaviour of the parties towards one another that lead to the opinion.

45Mrs. Rosseter introduced a number of photographs that depicted the parties in the company of others. In all the photographs in which they both appear, Mr. and Mrs. Rosseter seem to be enjoying not only the company of their friends and family, but also of each other. In many of them, they are seated next to or near one another. In one of the photographs (#29), taken during their trip to Florida in 2009, the parties are shown holding hands.

46Mrs. Rosseter called several family members to confirm various aspects of her testimony. Amongst them was Nancy Laframboise, Mrs. Rosseter’s younger sister. She testified about a number of occasions upon which she saw the parties together. She testified that Mr. Rosseter referred to Mrs. Rosseter as his “wife” or his “bride”, and called her “Lee“ or “Dolly”, both of which I gather are terms of endearment. None of this was disputed by Mr. Rosseter. Indeed, he admitted that they held themselves out as a married couple and he introduced her to others as his wife when they were socializing.

How the Parties Referred to Themselves in Documents

47The fact that the parties referred to themselves as “married”, rather than “separated”, when filing income tax returns was considered in Czepa v. Czepa (1988), 16 R.F.L. (3d) 191 (Ont. S.C.), varied on other grounds, 1990 12289 (ON CA), 26 R.F.L. (3d) 118 (Ont. C.A.), at page 196, as well as in Oswell.

48Throughout their marriage, Mrs. Rosseter completed income tax returns for both of the parties. This was a rather complicated task, because Mr. Rosseter’s mother had settled a trust for him, but was receiving the income from the trust and paying the taxes on that income while she was alive. On all of the paper returns filed in the relevant period, the parties were referred to as “married”, not as “separated”. Mr. Rosseter signed his tax return each year. Although he testified that he signed it without reading it because he trusted Mrs. Rosseter, I do not believe that he would have insisted that the return be changed even if he had. I see this as evidence that both parties viewed themselves as still being involved in a conjugal relationship.

Steps Taken Towards the Legal Termination of their Relationship

49In the fall of 2005, there was an incident after which Mr. Rosseter told Mrs. Rosseter he wanted a divorce and the two of them did not speak to one another for months. In early 2006, Mr. Rosseter invited Mrs. Rosseter to attend with him upon a lawyer for the purpose of obtaining legal advice about a divorce. She accepted the invitation. During the meeting with the lawyer, both parties asked questions. However, nothing came of it. As Mr. Rosseter put it, the parties parted company on the street corner after the meeting and each went their separate ways. However, they continued to see each other and to engage in the various activities together to which I have referred in these reasons.

50In 2007, Mr. Rosseter attended upon a lawyer by himself. According to him, the meeting was a disaster, for several reasons. Once again, no further steps were taken by Mr. Rosseter to terminate his relationship with Mrs. Rosseter and the parties continued to see each other.

51I do not view these meetings as being of particular significance in this case. In Oswell, both parties attended separate lawyers and the wife had her lawyer write to suggest that the parties enter into a separation agreement. However, Weiler J. held that the parties did not separate for the purposes of the equalization of their net family property until the following year. In Tesfatsion, the husband filed a petition for divorce, but later withdrew it. The trial judge in that case found that the parties did not separate until six years later.

Reasonable Prospect of the Resumption of Cohabitation

52Based on the foregoing, I have concluded that the parties were cohabiting in the period between 2003 and 2006. However, even if I am incorrect in that conclusion, I would certainly find that there was a reasonable prospect of the resumption of cohabitation during that time period.

53The jurisprudence with respect to this issue is not as plentiful as that with respect to the issue of separation. Regrettably, some of the cases appear to blend the two issues. It is true that many of the circumstances that I have referred to above are also relevant to the issue of whether there is a reasonable prospect that the parties would resume cohabitation: Taylor, at para. 17 (O.J.). However, while the presence of some or all of the indicia of cohabitation is relevant to that issue, it is possible to conclude that there was a reasonable prospect of the resumption of cohabitation in the absence of any or all of them. This will be the case where a court finds that, despite the degree to which a relationship between two parties deviates from the cohabitation norm, both parties had a genuine desire to resume cohabitation: Torosantucci v. Torosantucci (1991), 32 R.F.L. (3d) 202, [1991] O.J. No. 759 (Ont. U.F.C.).

The Parties’ Intentions

54Mrs. Rosseter was never asked about her willingness or desire to resume cohabitation. I believe this is because her position throughout has been that the parties never separated or, if they did, they resumed cohabitation in 2003.

55Mr. Rosseter testified that he always wanted to reconcile with Mrs. Rosseter. I accept that evidence. However, I do not accept Mr. Rosseter’s contention that Mrs. Rosseter felt otherwise. She had a chance to make a “clean getaway” when she left in 2001, but she did not. She could have seen her own lawyer for the purpose of legally terminating the relationship prior to 2006, but she did not. She could have followed up on the advice she received from the lawyer they saw together that year, but she did not. Instead, she engaged in all of the activities with him to which I have referred until February of 2009.

Efforts to Resume Cohabitation

56The prospect of the resumption of cohabitation must be looked at from an objective point of view, as well as a subjective one. As Beckett J. put it in Torosantucci, at page 4 (O.J.):

A reasonable prospect of reconciliation must be more than wishful thinking on the part of either party. There must be more than residual affection that may linger by one or both of the parties. The Act does not speak of a "prospect" of reconciliation but a "reasonable prospect". The Oxford Concise Dictionary 7th Edition, defines prospect as "expectation, what one expects." The question is whether a reasonable person, knowing all of the circumstances, would reasonably believe that the parties had a prospect or expectation of resuming cohabitation.

57In finding that there was no reasonable prospect of the resumption of cohabitation, Beckett J. relied on the failure of the parties in that case to take any steps to reconcile. He wrote, at that same page:

I do not doubt that Mr. and Mrs. Torosantucci wished that their marriage would have been otherwise than it was. I accept, on the part of Mr. Torosantucci, that he retained, and continues to retain, some degree of affection for her. But wishful thinking is not the stuff of reconciliation. There must be some indication or step taken by both of them in that direction. In this case, no attempt was made to mediate or reconcile their differences, no counselling from third parties was sought and most importantly no meaningful discussions ever took place between them as to if, how or when their marriage might be put back together.

58Both parties testified that they discussed counselling for their marital problems, although their evidence about it differed. According to Mrs. Rosseter, only one conversation took place, during which they each refused the other’s request to attend counselling. According to Mr. Rosseter, there were two discussions. The first took place while he was still drinking. In that conversation, he refused Mrs. Rosseter’s plea that they get help. He testified he later made the same suggestion, perhaps just before meeting with the lawyer in 2006, and Mrs. Rosseter refused. On either version, both parties demonstrated a willingness to attend counselling by making the request, and the presence of a stubborn streak by refusing it.

59Mr. Rosseter testified that Mrs. Rosseter did not wish to discuss their past or their future. However, as I have mentioned, he also said that he asked his wife in 2007 if they could pick up where they left off. There is no evidence of her reply. Based on the fact that Mr. Rosseter continued to engage in the activities he did with Mrs. Rosseter until 2009, I infer that her response left him with a reasonable hope that they could resume cohabitation.

60I also make that inference based on the steps the parties took to resume living under one roof in the period between 2003 and 2009. After 2003, the parties began looking to purchase a home together. Mr. Rosseter testified during his pretrial questioning that the parties attended as many as five to ten open houses, although he could not think of that many while testifying at trial. According to Mrs. Rosseter, in 2008 they came close to making an offer on one of them. Mr. Rosseter testified that he thought that Mrs. Rosseter wanted him to sell the Main Street West property so that she could then immediately seek equalization with respect to her portion of the sale proceeds. He testified that this was why he was reluctant to purchase another home. However, during cross-examination, he testified that the parties had never discussed the sale of the Main Street West property and that, instead, it was his intention to rent the property to tenants. I find that his fears were unjustified.

CONCLUSION

61Based on my consideration of all of the foregoing, I have concluded that the parties separated between 2001 and 2003, but that they resumed cohabitation thereafter until they finally separated without a reasonable prospect of the resumption of cohabitation on February 26, 2009.

62If I was not inclined to this view, I would certainly hold that there was a reasonable prospect of the resumption of cohabitation throughout the period from 2001 to 2009, based on all of the activities in which the parties engaged as a couple.

63Therefore, the valuation date for the purposes of the equalization of net family property is February 26, 2009.

64Given my conclusion, it is not necessary to consider whether the limitation period should be extended under s. 2(8) of the Act. However, I must say that it is hard to imagine not doing so in the circumstances.

65If the parties cannot agree on costs, they may make written submissions, as follows:

(a) Mrs. Rosseter shall have 30 days in which to serve and file written submissions of no more than 10 double-spaced pages, excluding attachments;

(b) Mr. Rosseter shall have 20 days from the receipt of those submissions in which to serve and file written submissions, similarly limited in length;

(c) Mrs. Rosseter shall have 10 days from the receipt of those submissions in which to serve and file reply submissions, limited to 5 double-spaced pages, excluding attachments.

66If a further case or settlement conference would be of assistance in resolving the remaining issues, one can be arranged through the office of the trial coordinator.

Ellies J.