Sol Juan v. Maria Juan, 2017 ONSC 786

CITATION: Juan v. Juan, 2017 ONSC 786

COURT FILE NO.: 301/10

DATE: 2017 02 02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Sol Juan

Lorne Levine, for the Applicant

Applicant

• and -

Maria Juan

Vershone C. Herd, for the Respondent

Respondent

HEARD: January 24,25,31,and February 1, 2017

REASONS FOR JUDGMENT

Bloom, J.

I. INTRODUCTION

1The issue before me is whether the proceeding brought by the Applicant is statute-barred by s.7(3)(b) of the Family Law Act, R.S.O. 1990, c. F.3 as am. (“FLA”), which provides:

Limitation

(3) An application based on subsection 5 (1) or (2) shall not be brought after the earliest of,

(b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;

2The Applicant contends that the parties separated with no reasonable prospect of resumption of cohabitation on June 10, 2009, and that, therefore, his proceeding is not statute-barred, since it was commenced on April 26, 2010.

3The Respondent argues:

a. that the relevant date for purposes of s. 7(3)(b) was January 4, 2001, the date of sale of what she alleges was the last matrimonial home of the parties, the jointly owned premises at 6897 Hickling Crescent in Mississauga; and

b. that prior to that date they were living at that premises.

She contends that, therefore, the proceeding is statute-barred.

II. GOVERNING PRINCIPLES

4In Rosseter v. Rosseter, 2013 ONSC 7779, Justice Ellies at paras. 8 through 56 discusses the legal principles applicable to the case at bar:

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), 1999 2278 (ON CA), 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), 1980 1537 (ON SC), 17 R.F.L. (2d) 376; [1980] O.J. No. 1904 (Ont. Dist. Ct.), a support case, and in Oswell v. Oswell (1990), 1990 6747 (ON SC), 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….

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

Eating Meals Together

20Whether the parties prepared meals for one another or ate together are two circumstances often considered in the jurisprudence….

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.

Presence of Personal Items at the Other Party’s Residence

Attending Social Functions Together

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

Celebrating Special Occasions Together

29Celebrating special occasions together is another feature of cohabitation….

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

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.

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….

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.

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.

Shared Use of Assets

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.

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), 1988 8647 (ON SC), 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.

Steps Taken Towards the Legal Termination of their Relationship

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 indiciaof 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), 1991 12851 (ON SC), 32 R.F.L. (3d) 202, [1991] O.J. No. 759 (Ont. U.F.C.).

The Parties’ Intentions

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.

5In Greaves v. Greaves, 2004 25489 (ON SC), [2004] O.J. No. 2522 (Ont. Sup. Ct.) Justice Mesbur at para. 34 affirmed the applicability of these criteria:

34 It is true that every marriage is different. Parties can live apart under the same roof, and can still cohabit even if they live in separate locations. The court must look at various objective factors to determine if the parties are living apart or not. Oswell v. Oswell perhaps best sets out the criteria for the court to consider. These include the following:

(a) there must be a physical separation ... Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;

(b) there must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;

(c) the absence of sexual relations is not conclusive but is a factor to be considered;

(d) other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.

(e) Although the performance of household tasks is also a factor ... weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.

(f) The court must have regard to the true intent of a spouse as opposed to a spouse's stated intent ... [a]n additional consideration ... in determining the true intent of a spouse as opposed to that spouse's stated intentions is the method in which the spouse has filed income tax returns.

6The language of s. 7(3) (b) when addressing the marital relationship requires proof not only of the separation of the spouses but also proof that “there is no reasonable prospect that they will resume cohabitation.”

7I further note that s. 18 (1) of the FLA provides:

Matrimonial home

18. (1) Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home. R.S.O. 1990, c. F.3, s. 18 (1).

III. ANALYSIS

8I intend now to apply those principles to determine the issues before me. In doing so I will be examining the evidence of the witnesses and making findings of fact to which the legal principles will be applied.

9I will first summarize the testimony of the Applicant. He testified that he and the Respondent married in October of 1979. Further, during the period 1984 through 2001 he lived at 6897 Hickling Crescent in Mississauga with the Applicant and their four children. The house, which was held jointly in the names of both parties, was then sold in 2001 and each spouse realized approximately $38,000.

10After the house was sold, the parties separated according to the Applicant. However, he testified, the parties were still seeing each other. He moved to the premises at 4 Beaumont Crescent in Guelph from which he operated his business. The Respondent moved to a townhouse on Britannia in Mississauga where she lived with their children. The Applicant went to that premises approximately every 2 weeks and stayed overnight with the Respondent, with whom he engaged in sexual relations. Further, they went out to dinners together as well. She never told him that she did not want him there. They reconciled at the Britannia premises.

11The Applicant further testified that he and the Respondent went on a week long holiday to Cuba in September of 2001 on which they shared a hotel room.

12After the lease expired on the Britannia premises, the Respondent and some of the children moved to the Beaumont premises. The Applicant built a bedroom there behind the office; she and he shared the bedroom.

13He continued that in 1996 the Respondent had a serious car accident from the effects of which she suffered greatly for 10 years. Those medical problems were complicated by a second car accident in December of 2001. He brought her to many medical appointments in those years.

14He testified that in 2007 the parties moved into the premises at 82 Cedarvale Avenue in Guelph. They lived in the master bedroom. Three of their children resided at Cedarvale at the outset, including his son who lived in a basement apartment.

15The Applicant further testified that he moved out in 2009 but still spent nights there many times, even after being divorced from the Respondent in 2013. He stopped that practice in 2014 when he met his present wife.

16He testified that prior to the divorce he went back and forth between Cedarvale and Beaumont; and that the Respondent still hoped that they would reconcile. However, in 2009 after a visit with the Respondent to his mother in Uruguay where the Respondent and his mother quarreled emotionally, he decided that he would not reconcile with the Respondent and would end the marriage. He had lived at Cedarvale in the period 2007 to 2009.

17Exhibit 1 is a Christmas card sent to the parties by their daughter, Marisol, in 2001 and addressed to them as “Mom and Dad.” Exhibit 2 is a Christmas card sent in 2002 by the Respondent to the Applicant from Florida expressing her love for him and signed with her nickname. He went to Florida in December of 2002 and stayed with her in the same bedroom at the home of a friend of hers, before driving her back to Canada.

18Exhibit 3 is an anniversary card sent in October 2005 by the Respondent to the Applicant when they were living as husband and wife at the Beaumont premises. It expresses love for the Respondent and is signed with her nickname.

19Exhibit 4A is a photograph of the parties together at the July 1, 2007 wedding of the Applicant’s best friend’s daughter. Exhibit 5 is another photograph of the parties together on a social occasion on September 11, 2008. Exhibit 6 is a birthday card to the Applicant from his daughter, Marisol, and her husband, expressing the wish that her parents will, upon the Applicant’s retirement, be able to travel together. The card was received by the Applicant in November of 2008 when he was living with the Respondent at Cedarvale in the same bedroom.

20The Applicant testified further that when he lived with the Respondent he was the provider and she did paperwork, including his tax returns. His returns for 2004, 2005, and 2006 falsely stated that he was separated. His 2009 return prepared by his accountant, correctly stated that he was separated.

21The applicant testified that the Beaumont premises is jointly owned by the parties. The Respondent bought Cedarvale in her own name with the accident settlement monies, but the Applicant contributed $18,000. which has never been repaid.

22The Applicant continued that he never considered divorce in 2007. He testified that he filed for divorce in April of 2010.

23The Respondent testified that, in January of 2001, the Applicant forced her to agree to the sale of the Hickling home for financial reasons, and that after the sale their marriage was over. She testified that they never reconciled at the Brittania premises nor did he ever spend the night there. He came there approximately twice monthly to see some of his children.

24She further testified that the Cedarvale premises was in her name alone, and that the Applicant never moved into it. She testified that an accountant prepared her tax returns. Her tax records showed her single or separated during the period 2000 through 2013. She testified that Exhibit 2 was sent by her to the Applicant as the father of her children because she was lonely and wanted someone to care for her and be her companion. She said that he was never there for her despite that card.

25She testified that the Applicant drove her back from Florida in December of 2002, but only because the trip accorded with his business needs. She also testified that after her 1996 accident her physical relations with the Applicant ceased because of her injuries.

26The Respondent appeared to lash out at the Applicant and his witnesses in her testimony. She was not forthright in her answers to her own counsel about whether she developed a drug dependency after her 1996 accident. I do not put weight on the tax returns of either party, since the details of the preparation of these documents is unclear. However, when confronted in cross-examination with the fact that her 2000 income tax return asserted that she was separated even though she contends at this trial that January 4, 2001 was the date of separation, she offered the unconvincing explanation that she used the term “separated’ because the marriage was not happy. The Respondent’s credibility was also undermined when it was pointed out in her cross-examination that, while she testified that she considered herself separated from the Applicant in 2003, the Beaumont property was purchased in the names of both parties in that same year.

27I have considered the testimony of Robert Perez, Washington Suppici, and John Runyon. I am unable to accept their evidence as to the relationship between the parties because it was not based on sufficient contact with them, and was not supported by the testimony of the two daughters of the parties.

28Melissa Pettipiere, a daughter of the parties, testified. It was obvious that she is angry with her father. Some of that anger emanates from the manner in which her father communicated his remarriage to her. Marisol Sokalski was the other daughter of the parties who testified. Her relationship with her father is also very strained.

29Ms. Pettipiere testified that the relationship between her parents was one of constant fighting. Despite her evidence that in her mind the parties separated after the sale of the Hickling premises, she also testified that they had separated in 1995. She also admitted that they possibly lived in the same bedroom at Beaumont. Moreover, she stated that she found it strange that they went together in 2009 to Uruguay when in her mind they had been living apart.

30Ms. Sokalski testified that the separation was permanent after the sale of Hickling in January of 2001; that at Brittania the marriage relationship was over; and that there still was no resumption of the relationship at Beaumont. However, she also testified that her parents went as a couple on a trip to Cuba in 2001, and she could not account for this fact. She also admitted that at Beaumont they slept in the same room in the period 2003 to 2007. Ms. Sokalski also admitted that in 2008 she sent her father a birthday card in which she referred to his still having a relationship with her mother.

31The issue before me is a narrow one: Was the proceeding commenced within the 6 year period set out in s. 7(3)(b) of the FLA ? As I earlier noted, the Applicant argues that the relevant date was June 10, 2009, the date of his decision to end the marital relationship after the quarrel between the Respondent and his mother in Uruguay. In oral argument the Applicant added an alternative position that the relevant date was in 2007 when the Respondent moved to Cedarvale. The evidence on which the Applicant relies on to support his position includes his own testimony; the evidence of Perez, Suppici, and Runyon; and the cards to him from the Respondent.

32The Respondent argues that the material date for purposes of s. 7(3)(b) was the date of sale of Hickling, January 4, 2001. In support of her position she relies on her own testimony, that of her two daughters, and that of tax returns of the Applicant.

33I have considered all of the evidence in this relatively short trial.

34I am skeptical of the Applicant’s evidence that he and the Respondent engaged in sexual relations at Britannia, and that he lived with the Respondent at Cedarvale. The testimony of Ms. Pettipiere and Ms. Sokalski cast doubt on that evidence. However, the evidence of the Applicant and Ms. Sokalski both support the finding that the parties lived as husband and wife at Beaumont in the period 2003 to 2007. Ms. Pettipiere also admitted that they may have shared a bedroom there. Exhibit 3 supports a finding of a marital relationship in that same period; it specifically includes in Spanish the words, “we are still together, fighting to fix the mistakes of the past.” Exhibit 2 contradicts the Respondent’s evidence that the separation was irrevocable after the sale of Hickling. The shared trip to Cuba also has the same evidentiary effect.

35I must apply the civil standard of proof, proof on a balance of probabilities, to the issue before me. I find that the test stipulated by s. 7(3)(b) of the FLA, “the spouses separate and there is no reasonable prospect that they will resume cohabitation”, was not met until after the cohabitation at Beaumont had ended, that being in 2007. Therefore, since the Applicant’s proceeding was brought on April 26, 2010, it was commenced well within the six year period set out in s. 7(3)(b) and is not statute-barred. I find that the parties when living at Beaumont in the period 2003 to 2007 were not separated. The extent of their physical relations is difficult to determine, because the Respondent was clearly still suffering from the injuries from her accidents and from the effects of the medications she was prescribed to treat those injuries. It is clear, however, from the circumstances that I have described that the parties were living together. They were not just under the same roof, but in the same room. I am not persuaded by the Respondent’s argument that there was no other reasonable living arrangement possible because of the lack of space at Beaumont. The arrangements were far from consistent with “no reasonable prospect that they will resume cohabitation.”

36The parties had a difficult marriage from the outset, but they continued their marital relationship, sometimes living apart. They did not separate with no reasonable prospect of resumption of cohabitation until after the 2003 to 2007 period of living at Beaumont. I accept the testimony of the daughters of the parties that the Applicant never lived at Cedarvale. The evidence at this trial establishes that they never lived together again after their time at Beaumont. I place the date of separation with no reasonable prospect of resumption of cohabitation at June 30, 2007 based on the testimony of the Respondent that she moved to Cedarvale in July of 2007.

IV. COSTS

37I will receive written costs submissions of no more than 5 pages, excluding a bill of costs. The Applicant is to serve and file his submissions within 14 days from the release of these reasons. The Respondent is to serve and file her submissions within 14 days from service of the Applicant’s submissions. There shall be no reply.