COURT FILE NO.: 661/15
DATE: 2018-06-12
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Kenneth William Hogarth
Applicant
– and –
Pauline Hogarth
Respondent
Stanleigh E. Palka, for the Applicant
Hamza Talpur, for the Respondent
HEARD: May 16, 2018
THE HONOURABLE JUSTICE J. WILMA SCOTT
REASONS FOR DECISION
[1] Kenneth William Hogarth and Pauline Hogarth married on December 29, 1973. They have four children, all of whom are independent at this time.
[2] The date of separation is the area of contention that has been brought before this Court for determination. Pursuant to the order of MacPherson J. dated January 27, 2017, the parties consented to address “the issue of the valuation date/date of separation by way of Affidavit evidence and questioning and that issue shall be determined … without viva voce evidence being called.”
[3] In accordance with that order, the parties have each filed an affidavit and a copy of the questioning that each underwent with respect to this issue. Surprisingly, no third party affidavits have been filed by either party.
[4] The position of the applicant is that the parties separated on March 1, 2005 while the respondent contends the date of separation was April 19, 2012 when the applicant moved to St. Catharines. There is no issue that between those years the parties continued to reside in the matrimonial home located at 2309 Dunedin Road in Oakville.
The Law
[5] As a starting point, a brief overview of the law will be set out.
[6] In determining the separation date, the Court is really being asked to decide the valuation date. Pursuant to the Family Law Act, R.S.O. 1990, c. F.3, “valuation date” is defined in s. 4 (1):
“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.
The date before the date on which one of the spouses dies leaving the other spouse surviving.
[7] For this matter only the date of separation, as described in the first item is relevant.
[8] While in most situations there is an obvious physical separation of the parties, case law has recognized that it is possible for parties to be living apart with no reasonable prospect of resuming cohabitation even while maintaining the same address. The court must look at the specific facts related to each situation as the determination of the valuation date is fact driven. The court must draw conclusions concerning the intentions of the parties with respect to their relationship. Intentions by necessity will be decided by a review of both the statements and actions of the parties and an analysis of the consistency of one with the other.
[9] Both counsel have directed the Court to Oswell v. Oswell, 1990 CanLII 6747 (ON SC), [1990] O.J. No. 1117, affirmed at [1992] O.J. No. 3563. This case provides a list of indicia for the Court to consider when determining a valuation date, a list that has been used in many cases since. While it is appropriate as a starting point to look at the indicia indicated in that case, it must be remembered that the final determination will be based on the specifics of the case being considered. This approach recognizes that what is acceptable for one family unit may be quite different for another.
[10] The list set out in Oswell, provides the following considerations for the Court to take into account:
Is there a physical separation?
Has one (or both of the spouses) taken steps to demonstrate his or her intent to destroy the matrimonial consortium?
Is there an absence of sexual relations that should be factored in?
What is the level of discussion of family problems and communication between the parties? Are there joint social activities? What is the meal pattern?
Are household tasks being performed?
[11] Additional indicia may be found in other cases as well. For example, do the family finances reflect separated persons (Newton v. Newton, 1995 CanLII 17875 (ON SC), [1995] O.J. No. 519) and how are the parties presenting themselves to others, including to the CRA?
[12] The court must always be vigilant of the significance of the valuation date and guard against any party attempting to manipulate the facts in order to protect their own interests, whether that be to include or exclude any equalization claim. In the case of a date being determined that results in an equalization claim being statute barred pursuant to s. 7 (3) of the Family Law Act, s. 2 (8) of this same Act might come into play:
2 (8) The court may, on motion, extend a time prescribed by this Act if it is satisfied that,
(a) there are apparent grounds for relief;
(b) relief is unavailable because of delay that has been incurred in good faith; and
(c) no person will suffer substantial prejudice by reason of the delay.
[13] With respect to this section, neither counsel have referenced it nor made any request that the Court consider this aspect in the course of this ruling. I would assume that is based on the consent order previously referred to that the Court determine the separation/valuation date and not to any intention to waive this issue in the future if argument is required.
Background and Discussion
[14] There is no doubt from the material before the Court that this marriage was tumultuous. The respondent’s evidence is that she has been with the applicant since she was 17 years of age. For a period of time they lived in England but came to Canada still in the early years of their marriage. The applicant eventually obtained work with Ford Motor Company in Oakville where he remained employed until his retirement in 2008. Their marriage was what many would describe as traditional with the respondent primarily being responsible for the children and the homefront while the applicant was the main income earner working outside the home.
[15] Both describe their marital relationship as dysfunctional with allegations of abuse flowing both ways. In the years prior to 2005, there had been two separations between the parties. The first one occurred in 1999 and lasted for about four months while the second one occurred towards the end of November 2001 and allegedly lasted for about a year and a half. On both occasions the applicant moved out of the matrimonial home and, in fact, with respect to the second separation, the applicant bought another home. (This home was eventually taken over by the parties’ daughter, Fiona, after the parties reconciled.)
[16] The applicant was asked to explain why, if 2005 was the year of separation, he handled this third separation differently from the previous two. He responded that he could not afford to move and it was convenient for him to remain in the home. While the Court does not have income information with respect to 1999 and 2001, the dates of his earlier moves, the income information from 2005 forward is available and suggests that he could have left on the same basis as earlier, i.e. moving out of the matrimonial home. Presumably he then could have taken steps to move forward on the terms of separation, including selling the matrimonial home, if a final separation was really the intention. Additionally, I note that with respect to the 2001 separation, the parties were already in the Dunedin property so the financial commitment then would have been the same as in 2005 and, I assume, his Ford income would have been comparable.
[17] The prior separations were undoubtedly symptomatic of the rocky relationship that the parties had, but nonetheless they appear to have been drawn back to one another on multiple occasions.
[18] According to the respondent, during the marriage money was tight and vacations were few and far between. She detailed only two or three over the course of their time together, excluding trips for family issues such as deaths. (Her family was in Malta, the applicant’s family was in England.) The matrimonial home on Dunedin Road was purchased around 2000. Apparently this was a home that the parties had admired and so when it came on the market they took the necessary steps to buy it and, I gather, in so doing took on a large mortgage. The home had a self-contained unit within it, presumably so it could house a tenant if necessary. The history of this unit after the parties bought the home, but prior to 2005, was that it was used at different times by their children. In January of 2005, however, the applicant took the step of moving into it himself.
[19] The unit has been described as approximately 800 square feet, with a main living space (that included a kitchen), bedroom and three piece bathroom. It had its own thermostat for controlling the temperature. While the applicant indicated that he had a key to the unit, he suggested that the respondent may have had one as well, as at times when he went in he found things had been moved around. According to the respondent, she did not have a key. She suggested that there were locks on all bedroom doors in the home so that people could retreat into them and be alone. She also added that the door to this unit was not always locked and at times the door was open, adding the applicant might lock the door if he were having a shower. She indicated that she periodically went into the area to clean. I accept her evidence in that regard as the applicant, during questioning, described the place as “quite a mess when there’s just a single guy over there” and did acknowledge that things were moved around by the respondent.
[20] The respondent’s evidence was that the applicant moved to this area of the home for peace and quiet as he had a very stressful job and also, it appears, to have a separate sleeping area as there were some difficulties between the two of them in the bedroom. According to the applicant, his decision to move into the unit was a decision to separate from the respondent. However, despite the move being in January of 2005, he has chosen March 1, 2005 as the separation date as there was further sexual contact between the parties in February of 2005. The respondent’s position, on the other hand, is that the last sexual contact between herself and the applicant was 2008.
[21] The applicant asserts that he purchased his own food and cooked meals for himself in the unit. The respondent does not deny that to have been the case but points out that the applicant did join the family for special meals such as Christmas and Thanksgiving. The applicant did give presents to the respondent at Christmas but suggests they were not personal, just things for the house. When considering this aspect, I do not view the nature of the gifts as significant. Also, I would point out there is no evidence of any personal gifts being given at any time. The applicant also suggests that the giving of gifts was done at the behest of the children. There is no independent evidence of that from any of the adult children. Consequently, what we have are his actions of giving presents to the respondent.
[22] In addition, the respondent points out that when the applicant’s mother came to visit in 2008, the year before she died, they operated as a family going out for dinner and to various events in the area. The applicant acknowledges that to be the case as well. The respondent added that it was the same when her sister came to visit too. There is no evidence to the contrary from the applicant on that point.
[23] It was not simply to extended family that the parties presented as a couple, but to Canada Revenue Agency as well. Up until the 2011 tax return, the applicant reflected that he was married on his return. Then, commencing in 2011 he showed himself as separated. (That return would have been completed in 2012.) No explanation has been offered by the applicant as to why he continued to identify himself to the government as married until 2011.
[24] Handling of finances by the parties did not appear to change until 2012. Bank accounts and lines of credit continued to be joint until then. The applicant continued to pay for the upkeep of the matrimonial home and there is a reference in the material to some other monies going to the respondent as well. She had access to the TD account as, according to the applicant, the respondent was using those monies for payments on debts such as Sears and Visa accounts. In 2012, after the move to St. Catharines, changes in the accounts occurred at the instigation of the applicant. Over $100,000.00 was transferred to him. He did continue to cover the payments for the upkeep of the house, however, even after his move to St. Catharines.
[25] In 2012, allegedly as a result of the applicant having inherited monies from his mother’s estate, he purchased a home in St. Catharines. According to the applicant this was after another altercation between the parties. Once in St. Catharines he met with counsel at the CAW Legal Services Plan who wrote to the respondent on May 17, 2012. The letter is somewhat unusual. It begins by stating:
“Based on the information provided by Mr. Hogarth, it is clear that you have lived separate and apart since February 11, 2005, when Mr. Hogarth began living in a self-contained dwelling within the matrimonial home.”
[26] However, the letter concludes by stating that no steps with respect to the separation were planned and that the letter was only notice that the separation had occurred. Of course, if the February 11, 2005 separation date was correct, the equalization claim had already expired over a year earlier and, as the parties at that point were living in two different cities, it is not clear to me what the purpose of the letter was, except to possibly test the waters.
[27] The respondent indicated that when she received this letter she called the applicant and, according to her, the applicant simply indicated that they were separated and that she did not have to cry. He apparently told her she would be keeping the house. She added that was the day she knew they were separated and she called their children to let them know.
[28] On December 12, 2014 a second letter was sent from Unifor Legal Services Plan on behalf of the applicant. This letter again set out the separation as being in February of 2005 but pointed out that the matrimonial home was jointly held and that the applicant wished for it to be sold. A follow-up letter was sent on February 27, 2015 asking for a response. The respondent’s former solicitor replied on May 6, 2015 indicating that the respondent would cooperate on the sale of the home subject to certain conditions, including that discussions commence on a number of issues, one of which was equalization.
[29] I presume there was no resolution as Mr. Hogarth filed this application with the court on November 23, 2015 and the respondent filed her answer on December 23, 2015.
Application of the Law on the Facts
[30] As has been noted earlier, in determining the separation date the Court must look at all the facts to see if the actions match what was stated to be the intention of a party. For a number of reasons, I cannot conclude that there is sufficient evidence to find the date of separation was March 1, 2005 as advocated by the applicant. When the relationship is looked at in the context of all the factors that must be considered when determining whether a couple is separated, there are simply too many gaps. As well, I would adopt the approach described by Czutrin J. in Newton v. Newton at paragraph 48 where he writes:
“[I] should, in the absence of a clear separation, examine the facts carefully and err on the side of not prejudicing litigants who may lose rights of equalization.”
[31] As has been agreed by both parties, there is no dispute that the applicant moved himself into the self-contained unit in January of 2005. There are clearly two different pictures presented as to why that happened. The respondent attributed it to the need of the applicant for peace and quiet and because of bedroom difficulties. The applicant attributed it to arguments between the parties and constant nagging on the part of the respondent. However, there is no doubt that after January of 2005 there were sexual relations between the parties. The applicant suggests that was in February of that year while the respondent’s position is 2008. While there is no way to know on the material which date is more accurate, I would note that cessation of sexual relations are not necessarily a determining factor in deciding what the separation date is. Even if the applicant is correct in his assertion that the parties did not engage in sex after February of 2005, there are other aspects that suggest to the Court that the parties were not fully separated from a legal standpoint.
[32] There is evidence to suggest that each party entered the other’s “space” for reasons that reflect a relationship. I have previously indicated that I accept the respondent’s evidence that she did clean the respondent’s area. We know that the applicant did eat with his family in the main household for at least special dinners such as Christmas and Thanksgiving. As well, he entered the main area of the home to do laundry and interact with his children.
[33] The parties continued to present themselves as a family to outsiders such as extended family, i.e. the applicant’s mother and the respondent’s sister, and do things as a family unit for those occasions.
[34] The applicant did give the respondent presents in celebration of Christmas. As indicated previously, the nature of those gifts is not particularly relevant.
[35] Financially the household carried on the same throughout based on the materials filed. The applicant had always assumed primary responsibility for handling the money and this did not change. His funds continued to go into their TD account. There is no evidence that there were discussions about payments being in lieu of spousal support or that the arrangement was tied into the parties being separated. There does not appear to have been any discussions about money. Generally, things simply just carried on as before, including the applicant’s filing of tax returns as a married person and presumably claiming whatever benefits that might bring. Only after the move to St. Catharines were the TD funds moved and did the applicant revise his tax return information to “separated”.
Conclusion
[36] For all of the foregoing reasons, I find that the date of separation is the date identified by the respondent, specifically April 19, 2012, when the applicant moved from the matrimonial home.
Costs
[37] If counsel are unable to resolve the issue of costs, brief written submissions should be filed:
i. by the respondent on or before July 12, 2018;
ii. by the applicant on or before August 10, 2018;
iii. any reply by the respondent on or before August 31, 2018.
[38] If no submissions are filed, nor any consent, there will be no order on account of costs.
Scott J.
Released: June 12, 2018
COURT FILE NO.: 661/15
DATE: 2018-06-12
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Kenneth William Hogarth
Applicant
- and –
Pauline Hogarth
Respondent
REASONS FOR DECISION
Scott J.
Released: June 12, 2018