Court File and Parties

COURT FILE NO.: 682/14 (St. Catharines) DATE: 2019-02-27

ONTARIO SUPERIOR COURT OF JUSTICE – FAMILY COURT

BETWEEN:

JANET LEE NEUFELD Applicant – and – WILMER JACK NEUFELD Respondent

Counsel: Richard H. Barch, Q.C., for the Applicant Paul Bauerle, for the Respondent.

HEARD at St. Catharines: June 27-29, July 3-6 and 30-31, August 1, 13-17, 20 and 22-24, 2018

R. A. Lococo J.

REASONS FOR JUDGMENT

I. Introduction

[1] Janet Neufeld and Wilmer Neufeld were married in 1993. From the outset of their marriage, they resided on a rural property on McNab Road in Niagara-on-the-Lake. From that residence, Wilmer oversaw W.J. Neufeld Farms Inc., which has significant farming operations in Niagara. Wilmer and Janet are the shareholders of Neufeld Farms.

[2] In November 2014, Janet brought an application for divorce and ancillary relief that includes the division of property and spousal support. The only issue that has been finally determined in this application is their divorce, which was effective in April 2016.

[3] The date of the parties’ separation remains a matter of dispute. Janet says that the parties separated in July 2014, a few months before she commenced the divorce application. Wilmer contends that the parties separated in or about June 2000 when Janet moved into separate quarters within the matrimonial home, where she continues to reside.

[4] To facilitate adjudication of the property division issues, the case conference judge ordered the “trial of an issue” to determine the parties’ date of separation on a final basis. The trial of that issue (sometimes referred to in these Reasons as the “separation trial”) took place over the course of nine weeks, lasting 19 sitting days, about twice the time initially allocated based on counsel’s time estimates.

[5] For the reasons that follow, a partial final order will issue, fixing the parties’ date of separation as July 31, 2014.

II. Background

[6] Janet is currently in her late 50s. Wilmer is in his early 60s. They met in the summer of 1992, and began a romantic relationship a short time later.

[7] At the time the parties met, Wilmer was (and remains) a chicken farmer, with chicken barns at various locations in Niagara. His farming operations also included fruit orchards, and later, vineyards. Wilmer had been divorced from his previous wife. He resided in his former matrimonial home on McNab Road that he solely owned, having previously bought out his former wife’s interest. He had two children from his previous marriage, Sarah (born in 1982) and Ashley (born in 1985). The children lived with his former wife in St. Catharines. Wilmer had access visits with the children at his residence and elsewhere.

[8] Janet had not been married previously, and had no children. She was a university graduate, and worked for the March of Dimes on a contract basis.

[9] Janet and Wilmer began cohabiting in the McNab residence by early 1993 (although the exact timing is in dispute). They married in June 1993. Janet was pregnant at that time but miscarried later that summer.

[10] The parties’ first child, William (Billy), was born in 1995. The same year, Wilmer was charged with domestic assault against Janet. He pleaded not guilty. He was acquitted following a trial at which both parties testified. The parties reconciled and continued to reside at the McNab residence. The following year, their second child, Bridgette, was born. Since the birth of her children, Janet has not had external paid employment.

[11] The McNab residence (which Wilmer continues to solely own) has two sections. The “main house” has two stories. Adjoining the main house (to the east) is a one-story section that the previous owners had apparently intended for use as an “in-law suite”.

[12] The upper story of the main house has four bedrooms and two bathrooms, including an “en suite” bathroom for the master bedroom. There is also an external walk-out balcony at the front of the house facing south, accessible from the master bedroom. The ground floor of the main house has a kitchen, a dining room, a living room and a den/family room.

[13] The one-story section of the house has another (east) kitchen with appliances (other than a dishwasher), a living area (with a fireplace) and a bedroom. At the rear of the one-story section is a laundry area accessible from both parts of the residence, with an adjoining full bathroom. Access to the other rooms in the one-story section is through separate doors from the laundry area into the east kitchen and the bedroom. Both those doors lock from the inside.

[14] There is a garage behind the one-story section, at the far northeast corner of the residence. A back door from the garage opens into a passageway that leads to the east kitchen and turns west into laundry area. A second back door opens from the exterior of the house to a passageway near the door to the ground-floor bathroom.

[15] The parties both testified that prior to sometime in 2000, the one-story section of the house was at times rented out to tenants who were not family members. During those periods, both the tenants and the Neufelds made use of the laundry room and the ground-floor bathroom, the latter being the only bathroom on the ground floor. Both the Neufeld family and the tenants also used the back door through the garage. Because the doors leading into the ground-floor bedroom and the east kitchen locked from the inside, the Neufeld family did not otherwise have access to the tenants’ area of the residence without their permission.

[16] There is no dispute that from sometime in the first part of 2000, there were no longer any outside tenants in the one-story section of the McNab residence. Wilmer testified that after the last tenants left, he invited Sarah and Ashley (his daughters from his first marriage) to move into the one-story section of the McNab residence. Sarah was then 18 and Ashley 15. They were apparently having a difficult time with their mother and step-father, with whom they had been residing. Wilmer testified that in preparation for his daughters’ move, there were some renovations to freshen the one-story section, which included repainting by Sarah. He also testified that Janet (i) knew about the plan to move his older daughters into the one-story section and (ii) initially had no objection. However, according to Wilmer, Janet changed her mind and decided to move into the one-story section herself. Wilmer says that Janet moved into the one-story section at that time, where she remains to this day. Wilmer’s narrative relating to the transition in the use of the one-story section in 2000 was generally supported by the testimony of his older daughters, Sarah and Ashley. Sarah also testified that Janet had previously displaced Sarah by taking over “her” bedroom on the second floor of the main house, in which Sarah had been accustomed to staying when she stayed over at the McNab residence for access visits. The parties’ two children, Billy and Bridgette, also testified as part of their father’s case, but were unable to shed light on the events in 2000, given their young age at the time.

[17] Janet’s version of events in 2000 is somewhat different than Wilmer’s. She agreed that once the last outside tenants moved out of the one-story section in 2000, that the one-story section was repainted (along with other parts of the house), and that Sarah assisted in repainting. However, Janet denied knowing about or agreeing to any plans for Sarah and Ashley to move into that section of the house. According to Janet, the intention was to take over the one-story part of the house as additional living space for the Neufeld family. The living room in that section of the house in fact became a family living area that was used by Janet, Wilmer and their two young children, Billy and Bridgette. The living area included a large-screen TV, couch, other seating and a computer for the children’s use. The children’s toys, crafts and books also migrated to that area.

[18] Janet also testified that sometime after the last tenants moved out, she began sleeping in the one-story section of the house, initially on the couch in the living area and later in the ground-floor bedroom. However, Janet said that for some time before that, she slept in a separate bedroom from her husband in the two-story area of the house, which she began doing for various reasons. Notably, doing so allowed her to attend to the children at night when they were young without disturbing Wilmer, who had to rise at an early hour to attend to farming tasks.

[19] Janet testified that even though she and Wilmer generally slept in separate rooms starting sometime after the children were born, the parties continued to have sexual relations on a regular basis, both before and after she began spending the night in the one-story section of the house. Wilmer’s evidence on this point was somewhat inconsistent. He testified that he and Janet seldom had sexual relations after she moved into the one-story section of the house, and that they stopped completely a few years later. However, he was unable to say when the latter date was with any precision. On cross-examination, he agreed that they stopped having sexual relations sometime prior to July 2014 (the separation date Janet advocated), but was ultimately unable to be more specific than that.

[20] Janet and Wilmer also testified as to other aspects of their life after 2000 that, in their submission, supported their positions as to the date of separation. They each called a number of other witnesses to provide a factual basis for their positions, some of whom are referred to elsewhere in these Reasons.

[21] Notably (as previously mentioned), Billy and Bridgette testified as part of their father’s case. As the children of both parties, it was no doubt extremely awkward for them to be required to give evidence at the separation trial. Generally speaking, it is fair to say that their point of view was aligned with their father’s. Janet suggested that their alignment with Wilmer was financially influenced, given his past and ongoing generous financial support and assistance to them. Billy and Bridgette appeared to me, however, to be honest and generally objective in their testimony. That being said, while they were young adults when they testified, their evidence to a significant extent related to events that occurred when they were young children or related to matters which occurred in private between Janet and Wilmer. As a result, I generally found their testimony of only limited assistance in determining the ultimate issue of the parties’ separation date.

[22] In any case, the trial evidence relating to the day-to-day life of the Neufeld family after 2000, to a significant extent, told a consistent story. Janet would cook meals for the family on a day-to-day basis, generally doing so in the kitchen in the one-story section of the residence. Except on special occasions (such as holidays, birthdays and other family occasions), they would generally eat separately, the children often doing so in front of the television (in the main house) as they got older. The parties agree that Janet continued to do the laundry for Wilmer and the children, collecting dirty laundry from their bedrooms in the main house and returning the clean laundry to them.

[23] Janet also claimed to have an ongoing significant role in the Neufeld farming operations, in particular being involved in “audits” of the chicken farming operations to meet required regulatory standards. To support that position, she provided (among other things) a photograph of her standing outside a farm building next to a man whom she identified, in uncontested testimony, as an examiner from the chicken farmers association (more on Janet’s photographic evidence later).

[24] As confirmed by the testimony of Wilmer’s accountant (referred to further below), it is common ground that Janet drew a pre-tax annual salary of approximately $40,000 from Neufeld Farms, of which Janet was a ten per cent shareholder. The accountant (who also prepared tax returns for Neufeld Farms and the Neufeld family) confirmed that Janet did not report any other material income. As well, the evidence did not indicate any difference in these arrangements before and after 2000. Janet was expected to cover groceries and other household expenses from her Neufeld Farms salary, which she deposited in a bank account in her name alone. (The trial evidence indicated that from the beginning of the parties’ marriage, the parties maintained separate bank accounts, with Wilmer otherwise controlling family finances.)

[25] In his testimony, Wilmer contested that Janet had any material role in the farming operations. While he conceded that Janet was involved to a limited extent in the “chicken audits”, he characterized her involvement as minor and infrequent. According to Wilmer, her day-to-day role was almost exclusively confined to domestic duties, including cooking, laundry, and maintaining the ornamental flower gardens, the latter being of particular interest to her. (The evidence also indicated that Janet considered herself the family historian with an apparent interest in photography, given the extensive photographic evidence she provided during the separation trial).

[26] Continuing after 2000, it is common ground that the family took vacations most every year, often going somewhere warm during the winter months. A great deal of trial time was spent reviewing vacation photos of Janet, Wilmer and their two children, in various combinations. In the photos, the Neufelds generally appeared relaxed and happy, as you might expect in holiday photos. During the parties’ testimony, attention was focused on whether Janet and (especially) Wilmer were wearing their wedding rings in the photos. The answer was: sometimes they were and sometimes they weren’t. The parties’ testimony as to the sleeping arrangements on these holidays was generally consistent. When the children were younger, the family all slept in the same room in two double beds. The parents slept in one bed and the children in the other. As the children grew older, they sometimes had a separate room from their parents. According to Janet, this scenario was consistent with a normal family vacation by a married couple with their children. According to Wilmer, they vacationed together for the sake of the children and otherwise lived separate lives. According to Billy and Bridgette, in large measure, this was normal life to them – at the time, they did not consider whether it was usual or unusual.

[27] Janet also placed into evidence a large number of photos of other family events that Janet and Wilmer both attended, generally with their children. Those photos included various combinations of Janet, Wilmer, Billy and Bridgette, as well as family members from both sides of the family. One annual event depicted in some of the photos was a post-Christmas dinner that included Wilmer’s mother (who died in 2018), Wilmer’s siblings, and his siblings’ spouses and children. The evidence indicated that for family events, Janet would often arrive and leave separately from Wilmer and the children. Janet’s explanation was that doing so allowed her to smoke in the car without disturbing the others (who did not smoke, although Wilmer later relapsed). She also testified that she liked to travel by less-travelled routes, since she was nervous about driving on busy roads (the latter being supported by other evidence). During Janet’s testimony, the photos of family events were carefully scrutinized to determine whether the persons appearing in the photos looked happy (most of the time, but not always), and whether Janet and Wilmer were wearing their wedding rings (usually, even after they were already divorced in at least once case, but not always).

[28] Janet also placed into evidence an extensive array of greeting cards (including for Christmas, Janet’s birthday and Valentine’s Day) that Janet received from Wilmer during that period, which she carefully preserved. The cards were signed by Wilmer, many preceded by some variation of “love”, or “your loving husband”. Janet testified that she had previously had in her possession a similar array of cards that she sent to Wilmer, which had disappeared mysteriously (and, some would say, mercifully). During cross-examination, Wilmer, Billy and Bridgette each denied knowing what happened to those cards. However, Wilmer admitted that in a fit of pique, he burned handwritten journals that Janet kept, which (according to Janet) documented their tumultuous relationship.

[29] It is also common ground that the parties continued to exchange gifts at Christmas and on birthdays. Wilmer’s gifts for Janet included expensive pieces of jewellery (to keep the peace, according to Wilmer). Janet testified that Wilmer would generally give her flowers on Valentine’s Day, as evident in photos taken at birthday parties held close to that date. The photographic evidence also indicates birthday celebrations for Wilmer or Janet (often with guests outside the immediate family), with the other party at times organizing the festivities or taking an active role in doing so.

[30] During the trial, there was also evidence relating to the parties’ respective roles with respect to various sporting and other extracurricular activities in which Billy and Bridgette were extensively involved. Billy and Bridgette are both athletic, participating over the years in hockey, lacrosse and (in Billy’s case) rowing. They also took music lessons from a young age. Wilmer’s evidence was that he had primary responsibility for taking the children to their activities, including practices and games or other athletic events. According to Wilmer, Janet took a fairly minor role, including providing transportation for one child when the other had a conflicting event. To a significant extent, Billy and Bridgette supported their father’s narrative. In her evidence, Janet agreed that Wilmer would more often take the children to activities than she would (particularly sporting activities). However, she disputed Wilmer’s suggestion that her role in the children’s activities was minimal. She also called outside evidence to support her position that she attended (and was involved in) the children’s activities and events, and that the division of labour between Janet and Wilmer was not out of line with other married couples.

[31] Wilmer also testified about romantic relationships he had with other women after 2000. His testimony was corroborated by one of Wilmer’s male friends, who testified that he had met at least two women Wilmer was seeing. According to Wilmer, Janet knew that he was seeing other women. In her testimony, Janet admitted to having her suspicions at times, but denied knowing about Wilmer’s other relationships.

[32] Wilmer also testified that he would sometimes take vacations without Janet or the children during that period, sometimes in the company of another woman. It was common ground that Wilmer’s work schedule would require him to work eight weeks straight after the delivery of baby chicks, while the chicks were growing to the point where they could be sold for commercial use. There would be a two-week period before the next batch of chicks arrived. During that period, Wilmer would typically work one week to prepare the chicken barns for the next batch of chicks. He would then take the other week off. Each year, a Neufeld family vacation (including Janet and the children) would normally occur during one or more of those weeks off. It was common ground that Wilmer would sometimes go away for a holiday without Janet or the children. Wilmer testified that another woman would sometimes accompany him, or meet him at his destination.

[33] One of the women Wilmer identified as a former girlfriend was SM, who testified at the trial. Her testimony is summarized as follows. She and Wilmer were romantically involved from 2003 to 2012, with at least one break in their relationship. During that period, they often met for lunch and dinner in public restaurants and sometime went out for a movie. SM understood from Wilmer that he was separated from Janet, but that Janet still lived separately under the same roof. SM loved Wilmer, and wanted a long-term relationship with him, but they eventually drifted apart. She had known Janet prior to Janet’s marriage to Wilmer but had not seen Janet since their marriage. SM was at the Neufeld residence twice during her relationship with Wilmer. Neither Janet nor his children were there on either occasion. During that period, SM spoke to Janet once by telephone (she believed in 2005), when SM answered a phone call coming from the Neufeld residence, assuming it was Wilmer. SM described Janet as being agitated and belligerent. SM hung up the phone when she realized that the call was not constructive.

[34] In her testimony, Janet denied knowing that Wilmer had been in a relationship with SM or any other girlfriend. Her explanation for calling SM (Janet believed in 2007) was that someone had been calling the Neufeld residence and hanging up when Janet answered. Janet called the number and spoke to SM, whom Janet had known previously. According to Janet, SM said she was a friend of Wilmer and had some business with him but denied being romantically involved with him. Janet said she believed SM, since from her previous acquaintance with SM, Janet did not believe SM was romantically interested in men.

[35] Janet also testified that on another occasion after 2000, she called Wilmer’s insurance agent and demanded to know whether she was having an affair with Wilmer. The agent was also a witness at the trial, testifying that she believed this incident occurred in 2012. Janet’s explanation for calling the agent was that Janet had seen an email or text message from the agent that included a “heart” symbol in the sign-off. The agent denied having an affair with Wilmer. The agent turned the phone over to her husband, who also spoke to Janet. In the end, Janet accepted that she was mistaken about the agent’s suspected relationship with Wilmer.

[36] Both parties also testified about a Mediterranean cruise they took together without the children (at Wilmer’s suggestion) in November 2010. Not surprisingly, their accounts of this cruise were conflicting. According to Janet, they had an idyllic, romantic time. To support her testimony, she provided the usual array of “happy” photos. Wilmer testified that they bickered constantly, so much so that he slept on the balcony of their unit more than once to avoid further trouble. He denied Janet’s testimony that they had intimate relations during that vacation.

[37] There were, however, some internal inconsistencies in Wilmer’s evidence relating to their Mediterranean cruise on the issue of their possible reconciliation. During his examination chief, he testified that he asked Janet to accompany him because he wanted to take the cruise but was not able to find anyone else to go with him. He denied that there was any prospect of reconciliation at that time. On cross-examination, he acknowledged the statement in his pre-trial affidavit (referred to further below) that the “reason that we took this vacation together was to try and effect some sort of reconciliation between us”. On cross-examination, he called that statement a mistake and confirmed his testimony in chief that there was no prospect of reconciliation at that time. On re-examination, however, he qualified that answer after his counsel directed him to a passage from the transcript of his pre-trial questioning. According to Wilmer in re-examination, he had considered the cruise to be an opportunity to reconcile with Janet only for the purpose of traveling together, not for purpose of restoring their previous relationship – he liked to travel and wanted someone to travel with. As well, he did not dispute Janet’s testimony that even after they were already divorced, he discussed the possibility of reconciliation with her (in an effort to resolve their litigation, according to Wilmer).

[38] The accountant who prepares tax returns for the Neufeld family also testified at the trial. His firm is also the accountant for W. J. Neufeld Farms Inc. and an investment company that Wilmer wholly owns. The accountant testified that he has prepared income tax returns for Wilmer, Janet and the Neufeld companies since at least 1995. He also prepared tax returns for Billy and Bridgette (who, like Janet, were also on the payroll of Neufeld Farms). The accountant said that the information he uses to prepare tax returns is (i) provided by the taxpayers, (ii) retrieved from the website of the Canada Revenue Agency (CRA), or (iii) taken from corporate records. The returns are filed electronically. The taxpayers sign only a filing direction, authorizing the accounting firm to file the returns on their behalf. The filing directions are provided to the taxpayers for signing and return to the accountant, normally without their coming into the accountant’s office in person. When the electronic return is prepared, information about the taxpayer is populated automatically from the previous year’s return. Any necessary amendment is then made based on information the taxpayer provides. The accountant also indicated that he generally took his direction from Wilmer and had met Janet in person only once, he thought in 2011.

[39] With that background, the accountant testified that in the “Marital status” section of the tax returns for both Wilmer and Janet for each year up to 2014, the box next to “Married” is checked, rather than the box next to “Separated” (one of the other choices). He testified that he did not change that selection from “Married” to “Separated” because he was not told that Wilmer and Janet were separated. He also stated that the only information he received relating to the state of their marriage was in 2008 or 2009, when he asked Wilmer about an entry in his shareholder loan account for approximately $25,000 for renovations to the Neufeld residence. The accountant stated that at that time, Wilmer told him the “backstory” about his older daughters wanting to move into the one-story section of the residence, but that they did not do so because Janet decided to occupy that space. In cross examination, he confirmed that he had no other indication that Wilmer and Janet were separated. He also stated that prior to changing “Marital status” on a tax return from “Married” to “Separated” when spouses resided at the same address, he would ask for supporting documentation, in case CRA questioned the change. He also confirmed that he would not expect CRA to challenge a change in marital status if the change made no difference to tax payable or an available benefit (as was the case for the Neufelds).

[40] Both parties also testified as to the events of July 2014 that Janet relies to support her position that their date of separation was in July 2014. Their daughter Bridgette (who was 18 years old at the relevant time) also testified with respect to those events.

[41] It is common ground that on the morning of July 20, 2014, Wilmer got up later than he planned because Bridgette had turned off the alarm clock in his bedroom (which was next to Bridgette’s bedroom). As a result of rising late, Wilmer missed or was late for an appointment (a golf tee-off time). Wilmer woke Bridgette to angrily and loudly reprimand her, telling her not to touch his alarm clock again.

[42] According to Janet, she found Bridgette outside the house that morning, crying uncontrollably. Upon being advised what happened, Janet went into the house and confronted Wilmer. According to Janet, he became angry and pushed Janet out of the house three times, each time with increasing force. Janet called the police station, and then called 911. Police attended at the residence, but no charges were laid.

[43] Janet also testified that the following day, Bridgette and Janet went to her mother’s cottage in Tweed, returning to the McNab residence a few days later. Janet also testified that as a result of these events, she then contacted a lawyer to commence divorce proceedings. According to Janet, Wilmer’s violent reaction to events that day was part of an episodic pattern of angry abuse against her dating back to the early days of their marriage (including the events leading to the assault charges against Wilmer in 1995 that were later dismissed). The turbulent nature of their relationship was also evident in the clinical notes of their family doctor, who also testified at the trial about Janet’s medical consultations with him. According to Janet, the difference this time (in July 2014) was that Wilmer’s anger and abuse were also directed against their daughter, leading to Janet’s decision to end their marriage.

[44] The testimony of Wilmer and Bridgette as to events of July 20, 2014, was much less dramatic than that of Janet. Wilmer and Bridgette were both vague about the exact date of the events, but accepted July 20, 2014 as being correct (as confirmed by the police report). Both of them confirmed that Wilmer had angrily reprimanded Bridgette, but denied Janet’s allegation that Wilmer had threatened to kill Bridgette if she touched his alarm clock again. Wilmer also denied violently pushing Janet, claiming that he would only have touched Janet to ward off a physical attack. Bridgette acknowledged advising her mother that she was upset (even hysterical) about her father’s reprimand and recalled being consoled by her mother, but denied that Wilmer had threatened her. Bridgette also testified that she was not present for the subsequent encounter between Wilmer and Janet. She was aware that the police came to residence, but did not recall speaking to a police officer.

[45] Janet also testified that after her return a few days later to the McNab residence, she contacted a lawyer about commencing a divorce application. In November 2014, Janet filed her application for divorce and ancillary relief that included property division and spousal support. The application was personally served on Wilmer later that month. Wilmer did not initially respond to the application, nor did Janet take any steps to advance the application over the course of the following year. As a result, Janet’s counsel and Wilmer were served with a Notice of Approaching Dismissal in November 2015.

[46] In January 2016, Janet’s counsel filed the necessary documents for an uncontested application hearing. Following the uncontested hearing, MacPherson J. made a final order dated March 1, 2016, granting the divorce (effective April 1, 2016) together with ancillary relief which included granting Janet title to the McNab residence. Justice MacPherson’s order also included a temporary restraining order against Wilmer, returnable April 7, 2016. On Wilmer’s motion, Scott J. subsequently set aside the restraining order as well as the final order for ancillary relief (but not the divorce), on terms set out in her endorsement dated May 16, 2016 (cited as 2016 ONSC 3214). As noted further below, the terms of Scott J.’s order addressed on a temporary basis (among other things) the issue of exclusive possession of the McNab residence.

[47] In Wilmer’s affidavit in support of his motion to set aside MacPherson J.’s order, he advanced the position that the parties’ actual date of separation was in 2000. The affidavit also advances November 2010 (after the parties’ Mediterranean cruise) as an alternative separation date should the court not accept a separation date in 2000. However, Wilmer is no longer advocating an alternate separation date after 2000 (as confirmed by his counsel during closing submissions).

[48] Following the filing of Wilmer’s Answer and Janet’s Reply, a case conference was held before Scott J. on September 30, 2016. At that time, Scott J. ordered that the issue of the date of separation be bifurcated from the proceeding and dealt with first by way of oral evidence. From Scott J.’s endorsement, it is clear the focus of her concern was that in the circumstances of this case, without an up-front determination of the date of separation, “the parties would be faced with obtaining a multitude of valuations for various assets”, many of which would end up being of no use to the court. The separation trial having now occurred, the parties are agreed that it is appropriate for the court to make a partial final order to determine the date of separation on a final basis, as contemplated in Scott J.’s case conference endorsement.

[49] As previously noted, Scott J.’s previous endorsement (setting aside the ancillary relief order and the restraining order) also addressed on a temporary basis the issue of exclusive possession of the McNab residence. As set out at paragraph 53 of that endorsement, pending further order or written agreement by the parties, Janet has exclusive possession of the one-story section of the McNab residence, where she continues to reside. She also has exclusive possession of the balance of the McNab residence each day from 5:01 p.m. to 7:59 a.m. the following day, excluding a locked office that Wilmer maintains on the premises. Wilmer has exclusive possession of the McNab residence (other than the one-story section) each day from 8:00 a.m. until 5:00 p.m. He also has exclusive possession of a condominium apartment in St. Catharines (acquired by his wholly-owned investment company in 2012), where he currently resides.

[50] I have set out those provisions of Scott J.’s endorsement in some detail, since they provide useful background with respect to a further extensive series of photographs that were placed in evidence as part of Janet’s case. Those photographs show Wilmer sitting in the living room of the one-story section of the McNab premises, watching television and (in many of them) smoking cigarettes. Billy also appears in some of the photos. It is common ground that the photographs were taken over the course of a number of days in the period from early June to late August 2017, more than a year after (i) the final divorce order and (ii) Scott J.’s order granting Janet exclusive possession of that section of the McNab residence. Janet testified that she surreptitiously took those photos with her cellphone, in some cases while sitting next to Wilmer on the couch (part of her leg appearing in some of the photos). According to Janet, those photos provide ample evidence that Wilmer does what he wants, regardless of legal constraints. She acknowledged that she did nothing to prevent Wilmer from coming into that part of the McNab residence but said she did not object to his presence in order to avoid conflict with him. She also acknowledged that Wilmer no longer came into that part of the residence once those photographs came to light during the course of the litigation.

[51] In his testimony, Wilmer claimed that he used the living room of the one-story section to watch television while smoking (being a relapsed smoker), without objection from Janet. He also alleged that Janet effectively encouraged him to do so be keeping Häagen-Dazs ice cream in the refrigerator of the east kitchen, knowing his weakness for that product. Janet disputed his testimony, claiming that she kept the ice cream there for her son Billy. In his testimony, Billy acknowledged that “I don’t mind” Häagen-Dazs. He also confirmed that he and his sister (being non-smokers) would be unhappy if his father smoked in McNab residence outside of the one-story section.

III. Position of the parties

[52] As previously indicated, Wilmer’s position is that the parties separated in or about June 2000. The considerations he relies to support that position include the following. (a) As of that time, Janet moved into the separate, one-story section of the matrimonial home, where she resides to this day. (b) After that time, the parties effectively led separate lives. (c) They no longer shared a bedroom. (d) They seldom had sexual relations, which ceased entirely after a few years. (e) Wilmer had other romantic relationships throughout that period, including one that lasted several years. Janet knew he was seeing other woman. (f) They did not have meals together on a day-to-day basis. Janet ate separately from the rest of the family. (g) They did not vacation together except for regular family vacations with the children as part of their co-parenting responsibilities. The lone exception was a conflict-filled Mediterranean cruise in November 2010, which they took together as travelling companions, rather than as a married couple. (h) They both attended extended-family events with the children, again as part of their co-parenting responsibilities, but Janet normally travelled to and from the events separately from Wilmer and the children. (i) Wilmer took primary responsibility for taking the children to their extra-curricular activities, while Janet pursued her own interests. (j) Janet had no significant role in the farming operations other than minor and infrequent involvement in the “chicken audits”. (k) While both parties’ tax returns from 2000 onward indicated the parties were “Married” (rather than “Separated”), the tax returns were prepared by their accountant each year based on the information in the previous year’s return. The tax returns did not reflect the true state of the parties’ relationship.

[53] Janet’s position is that the parties separated in July 2014. The considerations she relies on to support that position include the following. (a) On July 20, 2014, Janet had a physical confrontation with Wilmer over his angry reprimand of Bridgette that morning. After a few days absence with Bridgette from the McNab residence, Janet retained a lawyer to commence divorce proceedings. (b) The parties were not living separately prior to that time. (c) The parties had not shared a bedroom since early in their marriage (including prior to 2000), but continued to have sexual relations until shortly before July 2014. (d) While Janet had her suspicions about Wilmer’s fidelity, she was not aware of his relationships with other woman. (e) After the last tenants left the one-story section of the house in 2000, that part of the house was taken over as a family area. The children’s toys, crafts and books migrated to the one-story section. The living room included a large-screen TV, couch, other seating and a computer for the children’s use. (f) Janet continued to prepare meals for Wilmer and the children, as she had prior to 2000. On a day-to-day basis, they would generally eat separately, the children often doing so in front of the television in the main house as they got older. However, the family would generally eat together on holidays and other family occasions, sometimes including other extended-family members outside parties. (g) Janet continued to do the laundry for Wilmer and the children, as she had previously. (h) The parties continued to exchange gifts and cards for Christmas, birthdays, Valentine’s Day and other occasions. (i) The parties vacationed together on a regular basis, normally with the children. In 2010, they took a luxurious Mediterranean cruise as husband and wife, without the children. (j) The parties continued to attend extended-family events together with the children. Janet often travelled separately from Wilmer and the children so that she could avoid busy roads and smoke without bothering the others. (k) The parties continued to share responsibility for transporting the children to extra-curricular activities, consistent with what many other married couples did. Wilmer took a more active role relating to sports activities, in which he had a particular interest. (l) Janet continued to have a role in the farming operations, notably her participation in the “chicken audits”. (m) The parties’ tax returns until 2014 reflected the true state of their relationship, that is, “Married”, not “Separated”.

IV. Legal principles

[54] In this application, both parties are claiming equalization of net family property. The determination of the parties’ date of separation is a necessary step in the analysis of the parties’ equalization entitlement.

[55] A spouse’s entitlement to equalization of net family property is provided for in s. 5(1) of the Family Law Act, R.S.O. 1990, c. F.3. Subsection 5(1) provides as follows:

5 (1) When a divorce is granted …, or when the 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.

[56] Pursuant to s. 4(1) of the Family Law Act, the value of a spouse’s “net family property” is determined on the “valuation date”. The latter term is defined as the earliest of several dates that include (i) the date the spouses separate and there is no reasonable prospect that they will resume cohabitation, and (ii) the date the divorce is granted.

[57] In the circumstances of this case, there is no dispute that in order to determine the “valuation date” for equalization purposes, the first of these alternatives is the operative one, that is, the date on which both of the following criteria were met: (a) Janet and Wilmer were separated; and (b) There was no reasonable prospect that they would resume cohabitation.

[58] In order to support their positions relating to the date of separation, counsel for each of the parties referred to a number of previous cases in which the parties’ date of separation was in dispute, some of which are referred to later in these Reasons. Some of those cases also refer to s. 8 of the Divorce Act, R.S.C. 1985, c. 3, which addresses the court’s jurisdiction to grant a divorce on the ground of a breakdown in the spouses’ marriage: for example, see Greaves v. Greaves (2004), 4 R.F.L. (6th) 1, at para. 31.

[59] Under paragraph 8(2)(a) of the Divorce Act, the breakdown of a marriage occurs when “the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding”. For the purposes of para. 8(2)(a), “spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other”: para. 8(3)(a).

[60] In his closing submissions, Wilmer’s counsel suggested that it would be appropriate in this case to take into account the provisions s. 8 of the Divorce Act (including the test in para. 8(2)(a) and the deeming provision in para. 8(3)(a)) when determining the parties’ date of separation. It should be noted, however, that unlike in Greaves, there is no issue in this case that there was a “breakdown of [the spouses’] marriage” that provided grounds for granting of a divorce. Therefore, as indicated further below, it is not necessary to make that determination in the context of this separation trial, nor is it appropriate (in my view) to apply the criteria in s. 8 when making a determination under a different statutory provision.

[61] A final order granting a divorce was made March 1, 2016, taking effect on April 1, 2016. At paragraph 32 of Scott J.’s endorsement dated May 16, 2016 (setting aside the ancillary relief and restraining order), it is clear that the order granting the divorce was not set aside and remains effective. Under s. 21(2) of the Divorce Act, no appeal lies from an order granting a divorce once it is effective. There was no appeal in this case. In these circumstances, a determination of whether there has been a breakdown in the parties’ marriage under s. 8 of the Divorce Act is not before the court, since the issue has already been determined on a final basis. In any case, that determination would not bind the court to accept any particular separation date prior to the date on which the application was commenced, given that the divorce order was made more than one year after the application’s commencement: see Sydor v. Sydor, [2001] O.J. No. 4057 (Sup. Ct.), at paras. 6-7; rev’d on other grounds, (2003), 178 O.A.C. 155 (C.A.).

[62] That being said, the date upon which the parties separated may also be relevant when determining Janet’s claim for spousal support. Under para. 15.2(4)(a) of the Divorce Act, one of the considerations the court is directed to take into account when determining spousal support is “the length of time the spouses cohabited”. In order to determine the parties’ period of cohabitation, it would be necessary to determine when cohabitation ended by reason of the parties’ separation. In this case, as noted previously, the focus of Scott J.’s endorsement ordering the separation trial was to determine the date of separation for the purpose of division of property. On the evidence, however, I see no reason to conclude that the date of separation would be different for the purpose of determining spousal support under the Divorce Act: see Oswell v. Oswell (1990), 74 O.R. (2d) 15 (H.C.), at p. 18, aff’d (1992), 12 O.R. (3d) 95 (C.A.), in which the trial judge refers to the “similar phraseology” of the Divorce Act. In particular, as indicated further below, the evidence does not support the conclusion that prior to July 2014, the parties lived apart and either party had the intention to live separate and apart from the other.

[63] In order to support their positions relating to the date of separation, counsel for each of the parties referred to a number of previous cases that set out the considerations that the court should take into account when determining whether or not the parties are separated when they continue to reside under the same roof. In O’Brien v. O’Brien, 2013 ONSC 5750, at para. 51, the dilemma the court faces in these circumstances is described as follows:

The issue of the date the parties separated becomes tricky where, as in the present case, the parties remain under the same roof, and to some extent, continue to carry on a life together. That is because, although a marriage may be bad, that does not necessarily mean that the parties have separated. To determine the date of separation or, in fact, whether a separation has occurred, involves an analysis of what might be found to be an event of separation, combined with how the parties subsequently lived their lives.

[64] In O’Brien, at para. 52, the court also indicates that a separation “can be indicated by an event of separation, being an unequivocal act by the separating spouse indicating that … he or she wishes to separate without the possibility of reconciliation.” The court (at para. 53) then goes on to address the issue of “the way the parties subsequently live their lives”, adopting the “indicia of separation” set out in the trial decision in Oswell, referred to further below.

[65] Some judges have exhibited a significant degree of reluctance to find spouses to be separated when they continue to reside under the same roof. In Thomas v. Thomas (2003), 50 R.F.L. (5th) 416 (Ont. Sup.Ct.), at para. 51, Quinn, J. indicated as follows:

Physical separation under the same roof can exist, but the evidence must clearly show that fact…. It will be a rare case where spouses truly are living separately under the same roof. The court must carefully examine the surrounding circumstances before finding an under-the-same-roof separation.

[66] While the language used by other judges has not been so unequivocal, the courts have often declined to find that spouses who continued to living under the same roof were separated until the occurrence of a defining “event of separation” that clearly indicates that the parties are separated. For example, in O’Brien, at para. 64, the defining event is a letter from the husband (through his lawyer) to his wife in which he made “an unequivocal statement of his intention to separate, a position from which he did not retreat thereafter.” In other cases, the defining events include service of legal process (Karajian v. Karajian, 2012 ONSC 4921, at para. 30), and issuance of the divorce petition (Riha v. Riha, [2001] O.J. No. 1142 (Sup. Ct.), at para. 28.)

[67] In other decisions, the court has found that spouses who continue to live under the same roof are indeed separated. For example, in Parsalidis v. Parsalidis, 2012 ONSC 2963 (a case included in Wilmer’s book of authorities), the court held that the degree of separation between the parties was sufficient in that case where, among other things, the husband lived in a self-contained part of the residence, he rarely accompanied his wife and children to family events, and his financial and other contributions to the family were extremely limited.

[68] As a general observation, previous decisions relating to whether parties living under the same roof are separated assist in indicating a general approach to determining that issue, but the facts of any particular case are not necessarily of critical importance. For example, in the decision of Mesbur J. in Greaves (included in both counsel’s books of authority), the facts were that some years after the wife severed her relationship with her husband by leaving the matrimonial home with the children, the parties gradually resumed a relationship (including sexual relations), but did not resuming living together. The court was asked to determine whether the parties separated (i) at the time of the wife left the matrimonial home, or (ii) years later just prior to commencement of the divorce proceedings. The key issue was therefore whether the parties by reason of their rekindled relationship ceased being separated, even though they did not resume living under the same roof. In reaching the conclusion that the date of separation was the date of their initial split, the court in Greaves referred to frequently-cited indicia set out by Weiler J. (as she then was) in Oswell. The key issue in Oswell was whether the parties were separated even though they continued living under the same roof (in effect, the mirror image of the facts in Greaves).

[69] In Greaves, at para. 34, Mesbur J. usefully summarized the “indicia of separation” previously set out in Oswell, as follows:

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 [Often this is indicated by the spouses occupying separate bedrooms] [1] ... 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. [Footnote omitted. Ellipsis points in original]

[70] In Newton v. Newton (1995), 11 R.F.L. (4th) 251 (Ont. U.F.C.), at paras. 47-48, Czutrin J. sounds the following cautionary note relating to the economic consequences of favouring one possible date of separation over another date:

In the absence of undisputed evidence of an actual separation, … extreme caution should be exercised in fixing a valuation date.

Parties may attempt to manipulate valuation dates to attempt to improve their financial position vis a vis a possible settlement or trial. Where a party is in control of assets and debts, those assets and debts may change in value to the detriment of the person not in control. I wish to point out that I make no such finding in the case before me but state that this possibility existing is an example of why 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. Is there a reason, for example, why a person may wish to change dates, whether for valuation purposes or expiry of limitation periods?

[71] With respect to the question of limitation periods, s. 7(3) of the Family Law Act provides that an equalization claim shall not be brought after the earliest of three dates, one of which is “six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation”. As noted by counsel during closing submissions, relief from the limitation period in s. 7(3) may be available on a motion for an extension of time pursuant to s. 2(8) of the Family Law Act. Such relief was in fact granted in Newton, at para. 72. By contrast, the court has no discretion to vary the valuation date: see Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 41.

V. Analysis

[72] For the reasons below, I have concluded that (i) the parties separated as of July 31, 2014, and (ii) there was no reasonable prospect that they would resume cohabitation as of that date.

[73] As previously noted, Wilmer contends that the parties separated in or about June 2000 when Janet moved into separate quarters within the matrimonial home, where she continues to reside. As Wilmer’s counsel noted in his closing submissions, a finding that spouses are separated when one of them moves to self-contained quarters within the matrimonial home would be consistent with the court’s finding in Parsalidis. In that case, the date of separation was determined to be June 2006, when the husband started to sleep in the basement of the matrimonial home and moved his belongings there. In that case, the court found that the basement “had a separate entrance, as well as a full bathroom, fridge, television, couches, stereo and workout bench” (Parsalidis, at para. 120(i)). However, the fact that the husband moved to self-contained quarters was not the only consideration that led to the court’s conclusion that the parties were separated, as indicated below (at para. 123):

On balance, I find that the parties separated in June 2006. In reaching this conclusion, consider, in particular, the following: there was no evidence that the parties did things together other than some activities with the children; the father did not attend several family functions with the mother and the children; the parties slept in separate bedrooms; the father moved his personal items and clothing to the basement; the basement had a separate entrance, a bathroom and other facilities; the father did not take financial responsibility for the payment or the gas bill and the family car; and the father's financial contributions to the household were very limited.

[74] In reaching the conclusion that the parties were separated, the trial judge in Parsalidis, at para. 119, explicitly cited and relied on the analytical framework in Oswell, as restated in Greaves, at para. 34, which sets out “objective factors to determine if the parties are living apart or not”. As the case law amply demonstrates, no one factor is necessarily determinative of the issue of when the parties are separated. The result in Parsalidis is also consistent with the court’s approach in O’Brien, at para. 51, that is, identifying an apparent “event of separation” (the husband’s moving to the basement), but considering as well “how the parties subsequently lived their lives” in order to determine whether the parties were in fact living apart after that date.

[75] In the present case, the evidence indicated that the physical set-up of the one-story section of the McNab residence would have afforded the opportunity for one spouse to live separate and apart from the other, perhaps more so than the separate basement quarters in Parasalidis (which apparently did not include a full kitchen and a bedroom separate from the living area). That being said, applying the analytical framework from previous case law, I do not agree with Wilmer’s counsel that the parties separated in 2000 or any other date prior to July 2014. The factors I considered in reaching that conclusion include the following: (a) While Janet and Wilmer did not share a bedroom in the one-story section of the house, I accept Janet’s evidence that prior to 2000, she slept apart from Wilmer in one of the other bedrooms in the main house, starting at some point after the children’s birth. I also accept her testimony that the parties continued to have sexual relations, both before and after 2000, even though they occupied separate bedrooms. While Wilmer’s testimony on the latter point was somewhat of a moving target, he conceded that the parties continued to have sexual relations (albeit infrequently) after Janet began sleeping in the one-story section. He also testified that intimate relations ceased a few years later, but he was unable to state when with any degree of certainty. (b) The evidence indicated that Janet’s personal belongings, in large measure, migrated to the one-story section of the house after she began sleeping there, but so did some of the children’s belongings, including toys, crafts, and a computer for their use. As well, some of Janet’s belonging remained in main house, notably Janet’s out-of-season clothes in a closet on the second floor of the main house (as confirmed in Bridgette’s testimony). (c) While the living quarters of the one-story section could be locked from the inside, excluding the rest of the family, I accept Janet’s evidence that she rarely did so, allowing the free flow of family members (including Wilmer) between the two parts of the house. As noted previously, Wilmer’s presence in the one-story section continued even after the parties were already divorced and an order granting Janet exclusive possession of the one-story section was in place. (d) Janet continued to prepare meals for the whole family, including Wilmer. While family members did not eat together on a day-to-day basis, they did generally did so for holidays, birthdays and other special occasions. (e) The parties continued to exchange gifts and cards for Christmas, birthdays, Valentine’s Day and other occasions. (f) Janet continued to do the laundry for Wilmer and the children, as she had previously. (g) Janet continued to have some role in the farming operations relating to the “chicken audits”. While I accept Wilmer’s evidence that Janet’s role was limited, there was no evidence that her involvement was materially different after 2000. (h) While Wilmer took primary responsibility for transporting the children to their extra-curricular activities (particularly sport-related activities), Janet sometimes transported the children and attended events. The degree of her parental involvement did not appear to be out of line with that of other families. (i) The parties both continued to attend extended-family events together along with the children. I accept Janet’s testimony that she often travelled separately from Wilmer and the children so that she could smoke without bothering the others and avoid busy roads. (j) The parties continued to vacation together on a regular basis, normally with the children (with the exception of the 2010 Mediterranean cruise, when the parties travelled without the children). Consistent with Volko v. Volko, 2015 NSCA 11, 354 N.S.R. (2d) 360, at paras. 10-11, I agree with Wilmer’s counsel that joint attendance by estranged couples with their children for family vacations (as well as other family events and children’s activities) may well be consistent with the co-parenting responsibilities of separated parents, rather than indicating that the parties are not separated. However, consistent with other case law, I consider it appropriate to take those considerations into account when determining whether the parties are separated, recognizing that no one factor is necessarily determinative. (k) The evidence indicated that Wilmer had romantic relationships with other women after 2000, including one that lasted several years. However, while Janet evidently had her suspicions, there was no direct evidence (other than Wilmer’s testimony) that Janet knew about his other relationships. Janet denies that she did. In any case, given the trial evidence relating to Janet’s accusatory telephone conversations with SM and Wilmer’s insurance agent, it is fair to conclude that Janet would not have been accepting of Wilmer’s other romantic relationships had she known about them. (l) Both parties’ tax returns from 2000 to 2014 indicated the parties were “Married” (rather than “Separated”). As indicated by the Neufelds’ accountant, information about the taxpayer’s marital status was populated automatically from the previous year’s return. The accountant did not change the marital status from “Married” to “Separated” because he had no instructions to do so. The accountant also indicated that there would have been no effect on the parties’ tax payable or an available benefit if the parties’ marital status changed from “Married” to “Separated”. In these circumstances, Wilmer’s counsel argued that the declaration of marital state should not be considered determinative of whether the parties were separated in this case. As noted by Wilmer’s counsel, indicating on a tax return that the taxpayer is “Married” rather than “Separated” does not necessarily determine the issue: see Morin v. Morin, 2011 ONSC 1727, at para. 32, where the court accepted the wife’s position that the parties were not separated, even though both spouses declared their marital status in their tax returns as “Separated”: see also Anthony v. Anthony, 2019 ONSC 650, at para. 42. In other cases, however, the court relied on the marital status declared on the parties’ tax returns as a factor supporting the court’s conclusion that their marital status was consistent with that indicated on their tax returns: see Joanis v. Bourque, 2016 ONSC 6505, at para. 25; and Upfold v. Upfold Estate, [2007] O.J. No. 1106 (Sup. Ct.), at para. 27. In the circumstances of this case, weighing that factor with other relevant considerations, I am satisfied that the declaration that the parties were “Married” rather than “Separated” accurately reflect their marital status at the relevant time.

[76] I have also concluded that Janet has established that the parties separated in July 2014, as she contended. Janet considered the triggering event to be her confrontation with Wilmer on July 20, 2014, following his angry reprimand of Brigitte for turning of his alarm clock. In my view, the real significance of those events was that Janet resulting decision to retain a lawyer to commence divorce proceedings, which she did after returning to the McNab residence a few days later. I consider the fact that she retained a lawyer for this purpose to be an objective indication of her intention to live separate and apart from Wilmer. I therefore find that the parties’ date of separation was July 31, 2014. In reaching that conclusion, I also considered whether to fix the date of separation in November 2014, when divorce proceedings were actually commenced and Wilmer was served with legal process (consistent with the result in some decisions previously noted). However, given Wilmer’s stated position that he considered the parties to have separated long before July 2014, I concluded that it was more appropriate to fix the date of separation based on Janet’s decision to end their marriage in July 2014, rather than when Wilmer received notice of that decision. I am also satisfied on the evidence that there was no reasonable prospect of reconciliation between the parties as of that time.

VI. Disposition

[77] Accordingly, a partial final order will issue as follows:

1. The date of the parties’ separation is determined to be July 31, 2014.
2. For greater certainty, the valuation date for the purpose of any claim by the parties under Part 1 of the Family Law Act is July 31, 2014.
3. If the parties cannot agree on costs of the separation trial, they shall be determined following written submissions.
4. The application is adjourned to the trial scheduling court at 2:30 p.m. on March 28, 2019, to set a date for a case conference or as otherwise determined by the presiding judge.

[78] If the parties cannot agree on costs, the Applicant may serve and file brief written submissions (not to exceed three pages) together with a costs outline within 21 days. The Respondent may respond by brief written submissions within 14 days. The Applicant may reply by brief written submissions within seven days. If no submissions are received within the specified timeframe, the parties will be deemed to have settled costs.

The Honourable Mr. Justice R. A. Lococo

Released: February 27, 2019

Footnotes

[1] This sentence appears in the trial judge’s decision in Oswell, at p. 18, but was omitted in Greaves, at para. 34, I assume because it was not relevant on the facts of the latter case.