CITATION: Plimmer v. Burke, 2016 ONSC 7963
COURT FILE NO.: FS-15-83939-00
DATE: 20161222
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AMANDA MARIE PLIMMER – and – JAMES ANTHONY BURKE
BEFORE: André J.
COUNSEL: Amanda Marie Plimmer, on her own behalf
A. Loyens, for the Respondent
HEARD: December 15, 2016, at Brampton
E N D O R S E M E N T
[1] The sole issue in this matter is the date of separation of the applicant, Ms. Amanda Plimmer and the respondent, Mr. James Burke. Ms. Plimmer maintains that the parties separated on or about October 21, 2013 after she found out from a neighbour that Mr. Burke was unfaithful to her. Mr. Burke insists however, that the parties reconciled five weeks after October 21, 2013 and despite ongoing conflict, continued to live as man and wife until April 1, 2015.
BACKGROUND FACTS
[2] Mr. Burke and Ms. Plimmer got married on September 30, 2006. They have three children, Jayden and Ayden, born May 27, 2011, and Blake, born December 15, 2013.
[3] The parties had a tumultuous relationship on account of financial difficulty, verbal abuse, anger and Mr. Burke’s alcoholism.
[4] The conflict in the marriage reached a crisis point on October 21, 2013, when a neighbour advised Ms. Plimmer that Mr. Burke was being unfaithful to her. Thereupon, Ms. Plimmer verbally confronted Mr. Burke and repeatedly told him that the marriage was over and that he should leave the matrimonial home.
[5] There is a divergence of opinion regarding what transpired next. Mr. Burke returned to the matrimonial home five weeks later. He maintains that the parties tried to reconcile and worked together for that purpose until Ms. Plimmer left the matrimonial home on April 1, 2015. Ms. Plimmer insists that following her confrontation with Mr. Burke on October 21, 2013, there were never any attempts at reconciliation with Mr. Burke. She allowed him to live in the matrimonial home for the benefit of their children only. She made it clear to her friends and family that her marriage to Mr. Burke was over.
[6] Prior to 2013, Mr. Burke and Ms. Plimmer worked as audiologists at Plimmer Hearing Centre, a company owned by Ms. Plimmer’s father. Mr. Burke’s employment was terminated in 2013.
[7] In May 2014, the parties opened a company called Plimmer’s Hearing. Mr. Burke maintains that this was a joint enterprise. Ms. Plimmer insists that the new company was her initiative and that of her sister.
[8] Mr. Burke worked as a Hearing Instrument Specialist at the new company from the date of its opening in October 2014 until his termination on June 8, 2015.
COURT ORDERS
[9] On August 16, 2016, Justice Seppi made the following consent order:
The Applicant shall file her responding affidavits on or before October 14, 2016. Any reply affidavit [must be] served by October 19, 2016.
Any request for cross-examination of affidavits shall be received by October 21, 2016.
Any book of authorities and/or factum shall be served by either party on or before November 30, 2016.
The Respondent will provide a consent to release Hamilton Police Records from December 2012 to present.
GOVERNING PRINCIPLES
[10] Section 4 of the Family Law Act, R.S.O. 1990, c. F.3 provides that:
“valuation date” means the earliest of the following dates:
The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
The date a divorce is granted.
The date the marriage is declared a nullity.
The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.
[11] In Taylor v. Taylor (1999), 5 R.F.L. (5th) 162 (S.C.J.), 1999 14969, Whitten J. noted in para. 4 that:
Valuation day is therefore when separation and a lack of desire to live in a conjugal relationship coincide. The latter intent appears in the authorities to be equated with a lack of an intent to reconcile. In plain parlance, it would be at the point when a party gives up on the relationship.
[12] In Serra v. Serra, [2009] O.J. No. 432, 2009 ONCA 105 (Ont. C.A.) the Ontario Court of Appeal noted at para. 77:
The legislature chose the date of separation, principally, as the valuation date for purposes of establishing the equalization of net family property in Ontario. In doing so, it gave effect to the "equal contribution to the marriage" tenet by measuring the accumulation of wealth during the marriage as the difference between the value at separation and the value of property brought into the marriage. The same theory does not apply to post-separation date valuations because what happens to an asset after that point -- whether its value goes up or down -- is not related to contributions within the marriage context.
[13] In Torosantucci v. Torosantucci, 1991 12851 (ON SC), [1991] O.J. No. 759, 32 R.F.L. (3d) 202 (Ont. U.F.C.), the court stated:
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. For such to exist, there must be some indication of steps taken by the parties in that direction, such as counselling or meaningful discussion about the relationship. Mere moments of friendliness or civility were insufficient.
[14] Finally, in Cooper v. Cooper (1972), 1972 1901 (ON SC), 10 R.F.L. 184 (Ont. H.C.), Holland J. set out the criteria the court might look to in determining whether a married couple living under the same roof are living separate and apart for purposes of the Divorce Act, R.S.C. 1970, c. D-8, s. 4(1)(e)(i). At p. 187, he said:
[G]generally speaking, a finding that the parties were living separate and apart from each other has been made where the following circumstances were present:
(i) spouses occupying separate bedrooms;
(ii) absence of sexual relations;
(iii) little, if any, communication between spouses;
(iv) wife performing no domestic services for husband;
(v) eating meals separately;
(vi) no social activities together.
ANALYSIS
Procedural Issue
[15] The sole substantive issue in this motion is the separation date of Mr. Burke and Ms. Plimmer. However, Mr. Burke raises a preliminary issue concerning the materials filed by Ms. Plimmer in response to his motion. She filed additional affidavits after October 19, 2016, contrary to Justice Seppi’s August 16, 2016 order.
[16] Mr. Burke’s counsel submits that this affidavit material should be struck for the following reasons:
It is not in compliance with Justice Seppi’s order;
The affidavit material is highly prejudicial because Mr. Burke was not afforded on opportunity to respond to them;
Under 8.1 of the Family Law Rules, the material constitutes an abuse of process.
[17] To the extent that Ms. Plimmer’s two additional affidavits were filed after the deadline stipulated in Justice Seppi’s consent order, they are not in compliance with the order. However, it appears that Mr. Burke had ample opportunity to respond to Ms. Plimmer’s additional affidavits. He may have chosen not to respond and instead move to strike out the additional affidavits but that was a strategic decision on his part.
[18] That said, the additional affidavit material is not relevant, in my view, to a determination of the separation date and accordingly, I am unable to place any weight on them.
Separation Date
[19] As noted, Ms. Plimmer maintains that the separation date is October 21, 2013. She concedes that Mr. Burke returned to the home on or about November 30, 2013 but that she never formed an intention, following October 21, 2013, to resume their marital relationship. She received legal papers on October 28, 2013 to begin divorce proceedings.
[20] When Mr. Burke returned on November 30, 2013, she presented him with separation papers. She again handed him separation papers on September 30, 2014. She admitted to having sex with him but only after he pressured her to do so. She allowed him to work in her new business but only because of his constant complaining.
[21] In early March 2015, Mr. Burke admitted to having had sexual relations with several women. On March 15, 2015, she realized that she could no longer reside at the matrimonial home with her children and on April 1, 2015, left the home.
[22] Contrary to Ms. Plimmer’s position however, there is evidence confirming Mr. Burke’s position that following their initial separation on October 21, 2013, the parties took several steps towards reconciliation and represented to the outside world that they were scrupulously trying to salvage their marriage. These steps include the following:
- Marriage Counselling
[23] Mr. Burke presented a document from the Bayridge Family Center indicating that the parties commenced family counselling on December 7, 2013 and ended counselling on March 8, 2014. The document indicates that the purpose of the counselling was “Relationship/Affidavit & Drinking”. The goals of the counselling are listed as:
i. solutions to drinking;
ii. heal and repair from affair;
iii. communication and conflict resolution;
iv. extended family issues.
[24] It also indicated “follow-up 4/9/2015 couple end relationship”.
- Email Correspondence
[25] Mr. Burke sent an email to Ms. Plimmer on January 27, 2014 which indicated, inter alia, that:
I will also go to meeting tonight, and do all the other things required of me by, you, my children and our home as I have been doing.
[26] Ms. Plimmer sent Mr. Burke an email on January 28, 2014 indicating the following:
When we arrived at the restaurant you walked ahead of me – not with me. When we had dinner you looked around me more than at me. When we left, you walked ahead of me again. We got home and that was that dinner done, night done. This is what is left in romance in our lives? … So friggin sad. No wonder you found ways to cheat on me … You can’t even be bother with me during a time that we are still trying to heal and salvage our marriage. (emphasis added)
- Agreement of Purchase and Sale
[27] On May 31, 2014, Mr. Burke and Ms. Plimmer signed an Agreement of Purchase and Sale for the purchase of Unit 107, 2100 Finch Avenue West, Downsview, Ontario The agreement indicates that the buyer of the property was Amanda Plimmer-Burke and James Burke.
- Taxes
[28] Mr. Burke’s tax assessment for the tax year 2013 indicated under the heading “Marital Status” – “married”, while his assessment for the year 2015 indicates, under the heading “Marital Status” – “separated”.
- Mortgage Documents
[29] A document dated June 26, 2014 from Tangerine Forward Banking indicates that both Mr. Burke and Ms. Plimmer were the holders of a mortgage on the property located as 7 McDonald Crt., Dundas, ON, L9H 7G1.
Evidence
[30] In my view, the above evidence reveals that Mr. Burke and Ms. Plimmer resumed cohabitation following November 30, 2013. Their relationship may have been wracked by conflict but that does not negate the fact that they had tried to make their relationship work after November 2013. By her own admission in her January 28, 2014 email, Ms. Plimmer confirmed that this was in fact the case. They had counselling together, went out for dinner, and had an intimate relationship after November 30, 2013.
[31] For the above reasons, I find that the separation date is April 1, 2015 rather than October 21, 2013.
COSTS
[32] Both parties seek costs each in the amount of $5,000. Mr. Burke’s counsel seeks that amount on a substantial indemnity basis.
[33] In deciding the quantum of costs that can be considered fair and reasonable, I consider the following factors:
Mr. Burke was substantially successful in this motion.
The matter was not unnecessarily complex and did not require a great deal of preparation time.
While three hours were reserved for this matter to be heard, it required much less court time to be dealt with.
[34] Based on the above, fair and reasonable costs on this matter should be $2,500 inclusive.
ORDERS
The separation date between Mr. James Burke and Ms. Amanda Plimmer is April 1, 2015.
Ms. Plimmer will pay costs fixed in the amount of $2,500 inclusive to Mr. Burke, within three (3) months of today’s date.
André J.
DATE: December 22, 2016
CITATION: Plimmer v. Burke, 2016 ONSC 7963
COURT FILE NO.: FS-15-83939-00
DATE: 20161222
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AMANDA MARIE PLIMMER – and – JAMES ANTHONY BURKE
BEFORE: André J.
COUNSEL: Amanda Marie Plimmer, on her own behalf
A.Loyens, for the Respondent
ENDORSEMENT
André J.
DATE: December 22, 2016