Joanis v. Bourque, 2016 ONSC 6505

CITATION: Joanis v. Bourque, 2016 ONSC 6505

COURT FILE NO.: 08319/12

DATE: 20161018

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHANTAL JOANIS

Applicant

– and –

GERALD BOURQUE

Respondent

Guy A. Wainwright, for the Applicant.

Susan T. McGrath, for the Respondent

HEARD: September 7, 8, 9, 2016.

r. d. gordon, r. s.j.

Overview

1At the request of the parties, the trial of their matrimonial dispute was bi-furcated to allow for a determination of the valuation date before the remaining issues. It is the position of Ms. Joanis that the valuation date is October 31, 2010. It is the position of Mr. Bourque that the date is in August of 2006.

Background Facts

2In the 1990’s both parties owned Polaris dealerships. The Applicant’s business was in Hearst, Ontario. The Respondent’s was in Cochrane. They met at a dealership meeting in Toronto in the mid-1990’s, began a romantic relationship and eventually married in 1998. The Applicant sold her business and moved to Cochrane with her three children in August of 1997. They began living with the Respondent immediately thereafter.

3What began as a happy and loving relationship eventually became much less so. In 2005 or 2006 the Respondent had an extra-marital affair which the Applicant came to discover. As one might expect, she was unhappy and angered by the discovery.

4According to the Respondent this happened in August of 2006 and she ordered him from their bedroom and said they would never have sex again. He says she has been good to her word and although he continued to live in the home with her and her children until November of 2010 they were effectively separated, living separate and apart beneath the same roof.

5According to the Applicant, the Respondent’s infidelity was in 2005. She acknowledges that she was very hurt and angered but says he was contrite and promised never to do it again. She says their relationship was strained for a time but eventually things resolved and returned largely to normal. It was not until October 31, 2010 that their relationship broke down to the point where they separated. She then consulted a lawyer, had a letter delivered to the Respondent and he moved out of the home.

6It is in the context of these very different versions of events that the issue before me arises. The issue is of considerable importance because the value of certain assets increased significantly between the two dates in question.

The Law

7Section 5(1) of the Family Law Act (the “Act”) provides that when spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

8Central to the determination of a spouse’s net family property is the determination of the value of all the property that the spouse owned on the valuation date.

9As it pertains to this matter, the valuation date is defined in section 4 of the Act as the date the spouses separated and there was no reasonable prospect that they would resume cohabitation.

10The case of Oswell v Oswell, 1990 CanLII 6747 (ON SC), 1990 CarswellOnt 278 was one of the first to provide a detailed analysis of the factors to be considered when determining whether parties who occupy the same premises are living separate and apart. Those factors may be summarized as follows:

1. Has there been a physical separation of the parties notwithstanding that they remained within the same home?

2. Has one or both spouses withdrawn from the matrimonial obligation with the intent of repudiating the matrimonial relationship?

3. Has there been a continuing sexual relationship?

4. Has there been ongoing discussion between the spouses of family problems, have they attended social activities together, and have they maintained the same meal pattern?

5. Have there been changes in the performance of household tasks?

6. Are there indicia of a spouse’s true intent as opposed to a spouse’s stated intent?

7. Has a spouse made plans for his or her assets as a separated spouse?

8. Any other relevant factor.

11None of these factors is necessarily entitled to any more weight than another. A determination is to be made having considered all of these factors as a whole.

Analysis

12There can be little doubt that after October 31, 2010 the parties were separated with no reasonable prospect that they would resume cohabitation. I accept that Ms. Joanis told Mr. Bourque that day that they could no longer live together. I accept that Ms. Joanis consulted legal counsel on November 1 and that a letter was sent to Mr. Bourque shortly thereafter with the result that he moved from the house. They have not resumed cohabitation since. It is clear that there is no prospect of reconciliation.

13The bigger question is whether the parties were, between August of 2006 and November of 2010, living under the same roof but separate with no reasonable prospect that they would resume cohabitation.

14Mr. Bourque argued that the marriage broke down completely when Ms. Joanis learned of his affair in August of 2006. He says that he was immediately banished from the bedroom, denied any sexual relationship and was the subject of scorn and ridicule from Ms. Joanis as evidenced by the various e-mails filed as exhibits. He points out that in 2008 he changed his Will to limit her entitlement to his estate should he die and removed her as beneficiary from many of his life insurance policies. He says that neither of them ever held out any hope of reconciliation as evidenced by their not having sought counselling of any sort.

15Ms. Joanis, on the other hand, acknowledges that the marriage was difficult after she learned of his affair but that they continued to live together to try and work things out. She says that they had their ups and downs in the intervening years but that until November of 2010 they continued to live together as a family, trying to make their relationship work.

16I accept that for the most part Mr. Bourque and Ms. Joanis did not share a bedroom during this period of time. I accept that the sexual relationship between them was, if not non-existent, then practically so. I agree that many of the e-mails filed as exhibits denote a toxic relationship, devoid of affection, trust or respect.

17Looking at these factors with the benefit of hindsight one might reasonably argue, as does Mr. Bourque, that the marriage was over many years ago and that there was no reasonable prospect of reconciliation. However, hindsight has the tendency to colour one’s perception of events. The question is not whether, in hindsight, this marriage was doomed to fail. Rather, it is whether the parties were in fact living separate and apart under the same roof with no reasonable prospect that they would resume cohabitation.

18Several factors lead me to the conclusion that the parties were not living separate and apart, or if they were, that there remained a reasonable prospect that they would resume cohabitation.

19To begin with, the evidence established that aside from the limited sexual intimacy of the parties, the family continued to function as it had in the past. They generally ate dinner together as a family. They continued to celebrate birthdays and holidays together and attended social events together. In my view it would be quite unusual for a couple who have parted ways in such unhappy circumstances and who did not see any reasonable prospect of resuming cohabitation to act in this manner.

20Secondly, the family’s financial arrangements did not change to reflect any type of separation as might reasonably be expected if there was no reasonable prospect of their resuming cohabitation.

21Thirdly, the Applicant continued to work at the Respondent’s business. This is to be contrasted with his insistence that she not attend at the business immediately after their physical separation in 2010. One may reasonably question why, if the separation was in 2006, he did not insist that she leave the business at that time.

22Fourthly, neither party consulted with counsel or took any steps to address support or the division of their assets until November of 2010. Both parties had gone through a separation from their first spouse and both knew that it could have significant financial consequences. That neither of them sought to address those issues in the four years between 2006 and 2010 leads me to believe that neither considered themselves separated.

23Fifthly, Mr. Bourque appears not to have confided to anyone that they had separated in 2006 – not even his sister or his mother with whom he was close. His explanation for this was that he did not want it to be known in the community because he was concerned what people in the community might think. Even if I were to accept his explanation it does not address why he would not have confided in his mother or sister.

24Sixthly, Raymond Chabot, a close friend of the Respondent, testified that he knew the marriage was not going well and that the Respondent mentioned leaving the home on occasion. However, he also testified that Mr. Bourque would also say that he was hoping the marriage would turn around and get better. This indicates to me that if there was a separation it was not without a reasonable prospect of the resumption of cohabitation.

25Seventhly, both parties continued to file their tax returns as married and not separated until 2010. Mr. Bourque’s accountant testified that he had prepared the returns and perhaps had not asked sufficient questions to determine the actual state of the relationship between the parties. However, he also testified that based upon the information that was given to him at the time, this was the appropriate manner of filing the returns.

26Eighthly, in December of 2006, some five months after Mr. Bourque says they separated, he signed a letter in support of Ms. Joanis in her access dispute with her ex-husband. The letter states, in part: “These children have grown to become adults. I am proud of there (sic) accomplishments, and I am also excited to being part of raising these children. We are one big happy family. So lets keep it that way.” Mr. Bourque attempted to explain this away by saying that he simply signed at the request of Ms. Joanis to help her keep the children’s natural father out of their lives. This explanation rang somewhat hollow to me. Surely he could have offered his support without saying they were “one big happy family”. His willingness to sign a letter with this content indicates that the marriage was not, in fact, over.

27Ninthly, Mr. Bourque did not, until 2008 take any steps to change his Will or beneficiary designations on his life insurance to exclude Ms. Joanis, and even then left her his interest in the matrimonial home and the proceeds of any joint accounts held by them. These actions are not consistent with a final separation in August of 2006.

28Tenthly, at questioning on April 7, 2014, Mr. Bourque had the following exchanges with counsel for Ms. Joanis:

Q 117: Okay, okay, now did you announce to anyone else that there was a separation? I’m talking August of 2006.

A: In 2006?

Q 118: Well, after – anytime after August.

A: After 2006? Oh, my friends; some were – some were aware that I did not have a good marriage and you know some people looked at it, it was just a matter of time before we parted ways.

Q 119: Okay so you told them that after August of 2006 that you weren’t getting along and at some point you were going to separate, is that right?

A: Some of my friends knew up until 2006 that we did not have a good relationship. Once this affair happened in 2006 thereafter it became even worse because again, we were living apart and not doing as many of the same things as before. I spent more time with my friends and they realized that. I was not in a good marriage and, you know, it was just a matter of time…

Q 120: Matter of time for what?

A: That we would separate.

Q 540: Okay so you called your mom. And that was when? When you moved out?

A: No, that day I was standing in front of the post office and I opened a letter from her lawyer asking me to move out.

Q 541: Yes.

A: That’s when I called my mom and told her. I had that letter and it was done.

Q 542: It was…

A: I was moving out.

Q 543: What did you…What did you tell your mom specifically?

A: I basically told that it’s finally over.

29By these words Mr. Bourque effectively admitted that it was “a matter of time” after August of 2006 that they would separate and that the marriage was not finally over until 2010. These are not words consistent with a separation in August of 2006 or one which was with no reasonable prospect of the resumption of cohabitation.

30Finally, and perhaps most tellingly, Mr. Bourque hired a private investigator in 2008 to determine whether Ms. Joanis was having an extra-marital affair. One might question why he would do so if they had separated with no reasonable prospect of reconciliation. Why would it matter to him if she became involved with another person? Mr. Bourque had no reasonable explanation for his actions.

31Although the emails relied upon by Mr. Bourque are compelling, the preponderance of evidence does not support the conclusion that the parties separated in August of 2006, or even if they did, that the separation was without the reasonable prospect of the resumption of cohabitation.

Conclusion

32When I consider the totality of the evidence, I am left to conclude that the valuation date is October 31, 2010.