Warren v. Warren, 2019 ONSC 1751

Court File and Parties

COURT FILE NO.: FS-16-411918 DATE: 20190318 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ELIZABETH DIANNE WARREN Applicant – and – DEAN ROSS WARREN Respondent

Counsel: Faryal Rashid for the Applicant Christina Doris for the Respondent

HEARD: October 1, 2, 3, 4 and 25, 2018

Kristjanson J.

Overview and Positions of the Parties

1The parties were married in 1999. Both parties agree that they separated in August, 2004. The application was commenced twelve years later, in August 2016. The husband submits that the parties never reconciled, and the wife’s claim for equalization under the Family Law Act is barred by a limitation period. The wife, however, argues that the parties reconciled and cohabited starting in May 2009, and finally separated with no reasonable prospect of resuming cohabitation in January 2011. As such, she argues that her equalization claim is not barred by a limitation period.

A. Issues

2The only issue in this case is the date of separation - whether the parties reconciled and cohabited from May 2009 until January 2011, as argued by the wife, or whether the parties separated in August 1, 2004 with no reasonable prospect of resuming cohabitation, as argued by the husband.

B. Procedural Background

3In January 2018, Justice Gilmore, on consent, bifurcated the issue of the date of separation from the remaining issues of spousal support and equalization. The bifurcation was ordered in light of the limitation period argument advanced by the husband, the effect of separation date on the spousal support claim, and the significant costs of obtaining business and property valuations for a January 2011 date of separation if the limitation period effectively ended the equalization claim.

C. Date of Separation: The Legal Framework

4The limitation period in section 7(3) of the Family Law Act, R.S.O. 1990, c. F.3, provides that a claim for equalization of net family property must be brought within six years after the spouses separate and there is no reasonable prospect that they will resume cohabitation. The valuation date for equalization purposes under section 4(1) is defined to include “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.” “Cohabit” under the FLA “means to live together in a conjugal relationship, whether within or outside marriage”: section 1(1).

5The concept of separation for the equalization purposes under the FLA “is to fix the date on which the economic partnership should fairly be terminated”: Strobele v. Strobele, [2005] O.J. No. 6312 (SCJ) at para. 29. As stated by Weiler, J. (as she then was) in Oswell v. Oswell, 74 O.R. (2d) 15, aff’d (1992) at para. 8:

When a spouse makes plans for his or her assets as a separated person, the courts consider this to be indicative that there is no real prospect of resumption of cohabitation under the Family Law Act, 1986 : "One reason for the postponement of the valuation date after separation until the date when there was no reasonable prospect of resumption of cohabitation would be that only on that latter date would each of the spouses make plans for their assets as a separated person”…

6The court must determine objectively the date when the parties separated with no reasonable prospect or expectation of resuming cohabitation. The issue is whether a reasonable person, knowing all the circumstances, would reasonably believe that the parties had a prospect of resuming cohabitation. A determination of a reasonable prospect of the resumption of cohabitation, or reconciliation, is based on the intention of the parties. The true intention of the parties requires a consideration of objective factors and may differ from stated intentions. The intentions must be joint, not one-sided or mere wishful thinking as set out in Torosantucci v. Torosantucci (1991), 32 R.F.L. (3d) 202 (Ont. U. Fam. Ct.) at para. 14 per Beckett 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 ... But wishful thinking is not the stuff of reconciliation. There must be some indication or step taken by both of them in that direction. (emphasis added)

7Each marriage is different. The court must evaluate whether in this particular marriage, taking into account all of the circumstances, including the objective factors set out below, a reasonable person would conclude that the parties have separated with no reasonable prospect of resuming cohabitation. The factors include:

(a) Physical separation, including occupying separate bedroom, maintaining separate residences and reasons for maintaining separate residences;

(b) Presence or absence of sexual intimacy, although acts of intercourse do not necessarily imply periods of cohabitation with reconciliation as their purpose. This factor includes a consideration of the “attitude of fidelity”. As stated by Ellies, J. in Rosseter v. Rosseter, 2013 ONSC 7779 at para. 39, “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”;

(c) Communication between the spouses and discussion of family problems as well as planning for the future;

(d) Joint social activities, celebrating social occasions together, gifts, helping each other through difficult times, vacations together;

(e) The relationship and conduct of each of them toward members of their respective families and their friends, and how the friends and families behaved towards the parties;

(f) The financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.) and the sharing of assets. This includes a consideration of whether steps were taken to separate the parties’ assets, the continued use of a joint safety deposit box, joint credit cards, and bank accounts, spousal RRSP contributions, use of shared vehicles, and making plans for his or her assets as a separated person;

(g) How the parties referred to themselves in documents, including income tax returns, and to friends and families;

(h) Steps taken towards the legal termination of their relationship;

(i) Meal pattern, including eating meals together and performance of household tasks, including washing clothes, cleaning and shopping;

(j) Efforts to resume cohabitation (mediation, counselling, property purchase or lease, “meaningful discussions…as to if, how or when their marriage might be put back together”): Torosantucci v. Torosantucci, [1991] O.J. No. 759 (Ont. U.F.C.) per Beckett, J. at p. 4; for the factors listed above, see also Oswell v. Oswell, (1990), 28 R.F.L. (3d) 10 (Ont. H.C.J.), aff’d (1992), 43 R.F.L. (3d) 180 (Ont. C.A.); Sturgess v. Shaw, [2002] O.J. No. 2250 (Sup. Ct.); Ogilvy v. Ogilvy at para. 37; Rosseter v. Rosseter, 2013 ONSC 779; Greaves v. Greaves at paras. 34-37; Molodowich v. Molodowich

D. Positions of the Parties

8Dianne’s position is that the parties separated in August 2004, but reconciled in 2008. They began cohabiting in May 2009, and did so until January 2011. Dean’s company is the sole owner of the matrimonial home (referred to as “Etobicoke”). Dianne has remained in the Etobicoke home since the 2004 separation. Dean’s company has paid the property tax, mortgage and utilities on the Etobicoke home from the 2004 separation until the present time.

9During the period they were estranged, Dean purchased a home and a golf course in Jarvis, Ontario. Dianne’s position is that from May 2009 to January 2011, they lived together in both houses. Dean would bring Dianne and her daughter K. (an adult with a disability) to Jarvis where they would stay for 2-3 days a week. He would drive them back to Etobicoke where Dean also resided for two nights a week. They finally separated with no prospect of cohabitation in January, 2011, when she discovered that Dean was engaged in an extra-marital affair.

10Dean claims that the parties separated in 2004, they were never reconciled, and Dianne’s claim for equalization is defeated by the limitation period. Dean’s position is that from 2005 to 2009 he was in a relationship with Sheila Constant, with whom he had a child, AB, in 2007. Dean and Sheila lived together first in Kitchener and then in Jarvis, Ontario, and separated in May 2009. A parenting order in June 2009 gave Dean overnights with AB; he would commute one hour to Kitchener for access, and bring AB back to Jarvis, three times a week starting in July. From August 2009 to December 2009 he was in a relationship with another woman, Alice Idemunia. They spent significant amounts of time together, both during the week and on weekends. From 2010 to 2015, Dean was in a relationship with Carla Di Domenico. His position is that while he and Dianne remained friendly, they did not cohabit after their separation in August 2004, and have been separated with no reasonable prospect of resuming cohabitation since 2004.

E. Factual Findings

1. August 2004- May, 2009

11Dean left Etobicoke in August 2004 and moved to a condominium in Etobicoke. He began a relationship with Sheila Constant, who lived in Kitchener. Dean began living with Sheila and her three children in Kitchener in 2005. Dean purchased a golf course in April 2008 in Jarvis, Ontario. He also purchased a home in Jarvis, Ontario in June 2008. He and Sheila have a child, AB, born in June 2007.

12Sheila, her children, and AB moved to Jarvis in the summer of 2008 where they lived with Dean until May 4, 2009. Dean and Sheila separated on May 4, 2009. Dianne says that she and Dean reconciled in 2008 and began living together in May 2009. There is no documentary evidence (cards, photos, notes, phone records) that would indicate that Dianne and Dean were reconciling in this period. In 2008, Dean’s income tax return was filed as common-law with Sheila. He filed as single for 2009 to 2011; these returns were filed at the time. Dianne filed her income taxes as separated throughout the period; Dianne states they were all prepared at once in 2016, and her accountant wrongly used her current status on all the returns. This is one of the many inconsistencies in Dianne’s testimony, this time in relation to a sworn statement on a tax filing.

13Dean claimed Dianne’s adult daughter as a dependent on his taxes until 2010; I accept that this was to gain tax relief, in part because Dean continued to pay all the bills for the Etobicoke home. Starting with his 2011 taxes, Dean claimed AB, not K. as a dependent.

2. May 8 – July 8, 2009

14Dean was arrested by police on May 4, 2009 on charges relating to domestic violence involving his partner, Sheila, which were later withdrawn. Dean called Dianne to act as his surety. His evidence is that he called Dianne because he knew she would be at home; she didn’t work, and he knew her phone number. Dianne relies on this phone call as an important piece of evidence that they were reconciled. I do not agree. I find it consistent with their friendly post-separation relationship, in the context of the evidence as a whole.

15The bail conditions required Dean to live at the Etobicoke residence, which his company owned, from May 6, 2009 to July 8, 2009. As soon as his bail conditions were varied and he returned to the Jarvis house to live with his son, AB. I accept Dean’s evidence that he resided in Etobicoke for two months only to satisfy his bail conditions, and when the conditions were varied in July he moved immediately back to Jarvis.

3. Dianne’s Affidavits in Dean’s Family Law Proceedings

16Dianne swore two affidavits in Dean’s family law proceedings with Sheila during the alleged period of reconciliation. In her affidavit of June 5, 2009, Dianne swore that she and Dean had separated on August 1, 2004 and “notwithstanding their separation, they remain close.” She did not state that she and Dean were reconciled and that she and Dean were cohabiting together between the Etobicoke and Jarvis homes. The Endorsement of Justice Turnbull, dated June 26, 2009, specifically states at paragraph 19, “Dianne Warren has sworn an affidavit June 5th, 2009 stating that despite the fact their marriage did not continue, she and Dean continue to have strong and loving bonds with each other and that her children from a prior relationship also have a good relationship with the Respondent.”

17Dianne’s second affidavit, dated July 21, 2009, states that Dean had moved back to the Jarvis home because his bail conditions had been varied. Dianne did not claim, as she now does, that she and Dean were cohabiting in Etobicoke and Jarvis and had been doing so since May.

18It is contradictory and detrimental to Dianne’s credibility that she swore those affidavits which led the court to believe that they were separated and not cohabiting, and she now claims differently. This is a significant inconsistency on a material issue, that emerges “from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions :” R. v. A.M., 2014 ONCA 769 at para. 13.

19Diane’s explanation for failing to state that she and Dean had reconciled and they were now cohabiting in those affidavits was not plausible. She was unable to explain why it “would anger Sheila” that she and Dean were in a relationship, while at the same time claiming that Sheila knew of their relationship. Dianne struggled under cross-examination to explain how “lying by omission” was not considered to be lying. Both affidavits were sworn during the exact period of time when Dianne claims that she was cohabiting with Dean. This is an important factor in my credibility assessment.

4. Parenting Order and the Evidence of Commuting

20Sheila returned to Kitchener with AB in June, 2009. A shared parenting order with respect to AB was made in June, 2009, and Dean began to have AB for overnight visits. Dean produced his access schedule with AB from July 5, 2009 to December 29, 2010, which shows that Dean was driving approximately three times a week to Kitchener for all pick-ups and drop-offs at Sheila’s home in Kitchener. The drive from Jarvis to Kitchener is one hour each way.

21Dean’s home in Jarvis is a 1 to 1.5 hour drive from Etobicoke. Dianne claims she was living between Etobicoke and Jarvis, with Dean, at this time. She claims that she, often with her daughter K., would stay at Jarvis 2-3 days a week. Since she does not drive, Dean always drove them to and from Jarvis. She also says that Dean lived with them in Etobicoke two days a week.

22Perhaps most importantly, Dianne did not present any evidence of text messages, e-mails, or phone calls (other than a few short calls discussed below) during the alleged reconciliation period of 1.5 years, May 2009 to January 2011, in which she claims she commuted weekly with Dean between the Jarvis and Etobicoke residences, and only Dean could drive. When combined with coordinating the 50/50 access visits to AB, juggling this kind of schedule would require a communications trail of some kind. This is also an important factor in assessing the plausibility of Dianne’s version, and her credibility.

23Dean denies that he drove Dianne as alleged to and from Jarvis between May, 2009 and January, 2011; it would have been impossible to do this commute while working full-time at the golf course and driving to Kitchener three times a week to pick up and return AB. I find his evidence more plausible, and consistent with the documentary record.

5. September 2009

24The criminal charges were withdrawn in Cayuga on September 17, 2009. Richard McCauley, a long-time friend of Dean, testified that he drove Dianne to the withdrawal hearing. Dianne’s evidence is that they spoke about the party’s relationship on the drive, and that she asked Richard if he knew the parties had reconciled and he said “yes”. Richard denies this.

25Dianne also testified that in the summer and fall of 2009 Richard was at Etobicoke more than 15 times, often with his daughter. Richard denied this. He also explained that his daughter was in her early 20’s at the time and not spending time visiting his friends’ houses, as she was in post-secondary education and working part-time.

26Dianne submitted a few photos of visits with AB and Dean in the summer of 2009. In July, 2009 Dean bought Thomas the train tickets and invited Dianne to attend with him and AB, in part because he knew she was an experienced mother and could provide guidance with 2 year old AB. There are some photos of AB and Dianne’s grandchildren playing together on a visit to Ontario Place in August 2009. There is only one other picture of Dianne and AB after that, a photo with AB labelled September 24, 2009, which Dianne testified occurred when she looked after AB during Dean’s testimony at an unrelated court hearing. However, two other witnesses testified that they cared for AB on that date. Alice testified that she cared for AB on September 24, 2009, together with Richard, and that Richard drove AB to Kitchener on that date. Richard confirmed this in his testimony.

27Other than the photos from the summer of 2009, there are no photos of any in-person contact between Dianne and Dean or their children from fall 2009 to January 2011, even though Dianne testified that when she lived in Jarvis 2-3 days a week for 1.5 years, she frequently looked after AB while Dean worked on the golf course. She gave no plausible explanation for why the only pictures she has with AB are from three occasions in the summer of 2009, and why there are no pictures of her and Dean during their alleged 1.5 years of cohabitation.

28There are substantially more photos of Dean and his new partners with AB than there are of Dianne with Dean and/or AB.

6. Dean’s Relationship With Alice August-December 2009

29Dean was in a relationship with Alice Idemunia from late August 2009 to December 2009. Alice testified that she spent a great deal of time with Dean in this period, three nights a week and almost every weekend in the fall of 2009. Alice has a daughter; she provided a number of photographs of her daughter and AB together, and confirmed that they took the children to various events in the fall of 2009.

30Alice’s phone records confirm numerous calls of lengthy duration. She testified that she spent weekends and weekdays in Jarvis, Ontario with Dean, and he spent time at her home north of Toronto once the golf season ended. Her evidence is that it was not possible that Dean and Dianne were living together in this period based on the amount of time she spent with him from August to December 2009. Dean was running the golf course and driving to and from Kitchener to pick up AB and bring him back to Jarvis. Alice answered questions in a very straight-forward manner; she was not shaken on cross-examination; her evidence was consistent with contemporaneous documents; I found her to be credible and her evidence reliable.

(a) Telephone Bills

31An analysis of the phone bills in 2009 is important in evaluating the plausibility of the two competing accounts. Dianne did not tender many phone records in evidence, but she did introduce phone bills from October and November, 2009. It is telling that she did not introduce into evidence any phone bills from 2010, given her position that the parties cohabited throughout 2010.

32Alice produced two phone bills, from October and December 2009, which she states she located in boxes in her garage. They are consistent with an intense relationship with Dean. There are 7 calls in October, including calls of 238 minutes, and 205 minutes and 81 minutes. Her December 2009 bill shows 46 calls, many of lengthy duration (172 minutes, 155 minutes, 101 minutes, 90 minutes, 86 minutes, 76 minutes, 66 minutes. All the calls are listed as “Jarvis” on her cell phone bill.

33Dean produced telephone bills for the Jarvis house from November 2009 to May 2010. There are only three calls to any of Dianne’s numbers in this six-month period, on December 7 (1 minute) and December 8 (2 calls, 6 minutes and 9 minutes).

34Dean’s phone bill shows 30 calls to Alice in December 2009, many of significant duration (121 minutes, 79 minutes, 74 minutes, 73 minutes).

35Dianne’s cell phone bill for November 2009 shows 10 calls made by Dianne to either the golf course or the Jarvis home, and no incoming calls from the Jarvis house or golf club to her. Those calls were very short (two of 6 minutes, two of 5 minutes, the rest under two minutes). In October 2009, there are two calls from Dianne to Dean’s numbers, one of 1 minute and one of 35 seconds.

36Dianne’s records from November 2009 show a number of calls located in Cayuga, Ontario, a separate town which Dianne claims are actually to or from the Jarvis home or golf club. Cayuga is approximately 20 minutes away from Jarvis. Dianne’s evidence is that all the calls showing as Cayuga are from Jarvis. There is no reasonable explanation for this. All of Alice’s calls show Dean’s locations as Jarvis. All of Dianne’s calls from Toronto to the Jarvis home and golf club show as “Jarvis”, not Cayuga. I accept Dean’s evidence that Dianne has a friend (Linda Legacy) who worked at the golf course and lived in Cayuga. I do not accept that the calls in November made to and from Cayuga are evidence that Dianne was living in Jarvis with Dean as she claimed. In any event, there are only a small number of calls from Cayuga in two months of the 1.5 year alleged cohabitation period. This does not support Dianne’s account.

37The frequency and duration of phone calls in the fall of 2009 are consistent with the evidence of Dean and Alice that they were in an intense relationship, and inconsistent with Dianne’s evidence that she and Dean were cohabiting between two homes. Dianne’s explanation was that since they were living together, they did not need to call. I do not accept this as a plausible explanation. I find that a cohabiting couple travelling at least weekly between two homes which are 1-1.5 hours apart, where Dean would always have to pick up and drop off Dianne, and pick up and drop off AB 3 times a week in Kitchener, would have much more frequent telephone contact, to make plans, touch base on traffic and delayed arrivals, make meal plans, discuss family concerns, or coordinate their schedules.

7. Holidays 2009 and 2010

38There was no evidence that the parties celebrated holidays together in 2009; there was no mention of Thanksgiving in either 2009 or 2010, or Easter in 2010, and I find as a fact that Dean did not celebrate Christmas in either year with Dianne.

39Ms. Sylvia Taylor, a close friend of Dianne’s, gave evidence that she saw the parties together on Halloween 2009 at Etobicoke, and gave evidence that K. slept over at her home while Dianne and Dean were together that night. On cross-examination, she admitted that she may have been mistaken. Dianne testified that she was in Cayuga on Halloween 2009. Ms. Taylor’s evidence was unreliable. It was clear that she was repeating information that Ms. Taylor had been told by Dianne, and did not have independent knowledge or information with respect to the parties’ relationship. She admitted that much of the information in her affidavit was based on Dianne’s recounting, and not on her own observations. Ms. Taylor admitted on cross-examination that it was possible that she did not accurately remember the dates and times when she saw Dean in Etobicoke with Dianne. She agreed that some of her statements were possible elaborations of memory. I do not find her evidence to be reliable.

40Dianne’s evidence is that Dean went to his brother’s house for Christmas dinner, 2009, after which he and AB spent the night at Etobicoke with her.

41Dean testified that he did not see Dianne at Christmas. He and AB went to his brother’s house for Christmas dinner, stayed overnight with his friend Richard, and travelled on Boxing Day with AB to Alice’s house. Alice’s testimony confirms this. Richard also confirms that Dean and AB spent Christmas day with him and his family; had dinner at Dean’s brother’s house; returned to Richard’s to sleep; and left to spend Boxing Day with Alice. His evidence is that there was no mention of reconciling with Dianne, and Dianne did not spend Christmas with them.

42There are no photographs of Dean and Dianne together at Christmas, 2009 or at any other holiday. There is a photograph of Dean with his brother’s family at Christmas, 2009. None of Dianne’s witnesses testified that he was there for Christmas, 2009. I accept the evidence of Dean, Alice and Richard that Dean did not spend Christmas with Dianne.

8. Relationship With Carla in 2010

43Dean gave evidence that in 2010 he commenced a relationship with Ms. Carla Di Domenico, from October 2010 to March 2015. Dean’s evidence is that they spent 4-5 days a week together in Jarvis or at her home in Hamilton. His credit card statements reflect frequent purchases in Hamilton commencing in October 2010 and continuing through January 2011. There are many pictures of Carla and AB together.

44Since Carla did not attend for cross-examination, although she had originally filed an affidavit, I did not admit the affidavit. Dianne asks me to draw an adverse inference from Carla’s failure to testify, “such that in the event of contradictory evidence between the parties, the evidence of the Applicant Wife will be believed over the evidence of the Respondent Husband.” This is far too broad an adverse inference to draw. In the normal course, an adverse inference should only be drawn that the witness would not give evidence that would support the party against which the inference is sought – in this case, for example, that Dean was not in a relationship with Carla in the relevant period from October 2010 to January 2011. I do not do so because there is corroborating evidence for the October 2010 commencement date and a relationship persisting until at least September 2011 from two other witnesses, Mr. Greg Michell and Richard. In addition, the relationship (a former girlfriend, rather than a parent, for example) is not a strong basis for an adverse inference.

45Mr. Greg Michell is a clinical investigator who conducted an investigation for the Office of the Children’s Lawyer pursuant to s. 112 of the Courts of Justice Act for the purpose of the family law litigation involving Sheila and custody/access to AB. Mr. Michell submitted an affidavit; he was not cross-examined. Mr. Michell was assigned to the file in September 2009 and produced reports dated February 2010 and March 2012. The first investigation was conducted during the period Dianne and Dean were allegedly cohabiting in the Jarvis house, where Dianne said her daughter K. had a room in the basement with a fridge, and they left their belongings in the house. Mr. Michell conducted four personal interviews with Dean at the Jarvis residence between October and December 2009. Mr. Michell did not observe Dianne or her daughter. He stated that he “did not observe that there was any sign or evidence of Dean being in a cohabiting relationship with any person at that time”, and “Dean did not represent to me that he was in a relationship of some significance or a cohabiting relationship with any person at the time of the investigation.” This is consistent with Dean’s evidence.

46In September 2011, Mr. Michell interviewed Carla and Dean. He stated in his affidavit that “Both Mr. Warren and Ms. Di Domenico represented to me as part of my interview that they were in a long term relationship and that they had been dating since 2010. They were not cohabiting.” He also noted that Carla was present for an observation visit with AB in September 2011. The OCL, Mr. Michell, is the only independent witness in the trial who does not have a personal relationship with either party. His evidence was not subject to cross-examination and stands uncontroverted.

9. Lack of Evidence of Communications

47Dianne’s evidence is that she and Dean were living together 2-3 days a week at Jarvis, and 2 days a week in Etobicoke, in a reconciled relationship, but she did not tender the type of evidence one would expect – emails, text messages, phone records, birthday cards, or pictures of special occasions, or discussing the life events of a cohabiting couple, for the entire period of May 2009 to January 2011. Other than a few pictures from the summer of 2009, there are no photos of the parties together, or photos of the parties together with their children. There are very few phone calls in 2009. There is no evidence of any phone calls in 2010, and no emails or texts in this period.

48While Dianne claims she did not have access to any of her email/text files since her server had changed, she did put into evidence some texts from 2008. She provided no evidence of steps taken to locate the allegedly missing emails from the sympatico server, or copies of messages received by friends and family during this time referring to life events, birthday planning, or anything referring to Dean and her relationship with him in this 1.5-year period. There were no cards, letters, or other communications that cohabiting couple’s exchange. I did not find her explanation for the lack of any communication in the 1.5-year period plausible.

10. Credit and Debit Card Statements

49Dianne had no charges on her debit card or credit card outside of the Toronto/Mississauga/Etobicoke area during the alleged reconciliation period. In her closing submissions, Dianne asked the court to infer that any time that Dianne did not use her debit card in Etobicoke then she must have been in Jarvis. The court cannot make this inference without actual evidence that Dianne spent time in Jarvis. Notably, there are no debit card transactions in Jarvis, Simcoe, Brantford, Hagersville, or any of the towns surrounding Jarvis. For many of the days that there was no activity on the debit card, the balance is minimal.

50Dean’s credit card statements show that he did not spend any significant amount of time in Etobicoke between December 2009 and January 2011. Of the 245 days between December 23, 2009 to January 17, 2011 that he used his card, he charged items in Etobicoke six times. He purchased items in Toronto/Mississauga on 26 days in over 12 months. The record is consistent with his testimony that his trips to Etobicoke were to see his dentist, go to the airport, and to travel to Toronto for business including litigation. The pattern of his expenditures is inconsistent with living with Dianne for two days a week in Etobicoke as she alleges. The credit cards show the normal type of frequent purchases - gas, groceries and convenience stores - in and around Kitchener and Jarvis, but not Etobicoke.

11. Other Evidence – 2009 to 2010

51Other than some evidence of Dean attending backyard barbecues in the summer of 2009, there is no evidence that the parties regularly socialized, ate meals together, shopped for groceries, cooked, cleaned, or did the normal upkeep of households together.

52Financially, Dean has paid for the mortgage, property tax and utilities expenses of the Etobicoke home since 2004, including for a period of years when the two parties agree they were separated. Nothing has changed in terms of the payment of those expenses, whether separated or together, and it cannot be relied on as evidence of reconciliation. The fact that some mail may have gone to the Etobicoke house for Dean is not reflective of a cohabitation relationship or intent to reconcile; tax and other bills show that Dean changed his address after the 2004 separation.

53Richard McCauley, a long-time friend of Dean’s, gave evidence that:

• He and Dean speak 3-4 times a week. In the period 2009 to 2011, Dean was having a tough time with the breakdown of the relationship with Sheila, family court hearings about access, and a wrongful litigation suit with his former employer. They spoke frequently about his stress and emotions. At no time did Dean ever mention that he and Dianne had reconciled, that Dianne was living with him at Jarvis, or that Dianne had any kind of regular presence in his life at that time;
• He drove Dianne to court in Cayuga as a potential witness in September 2009, the day the charges were withdrawn. Dianne did not mention that they had reconciled, and did not claim to be living at Dean’s home in Jarvis; Dean and Dianne arrived at court separately and left separately. Other than that one time, he has not seen Dean and Dianne in the same place together since their separation in 2004;
• Dean and AB spent Christmas Day, 2009 with Richard, and slept at Richard’s house before leaving to visit Alice on Boxing Day; there was no mention of Christmas with Dianne; and
• He and Alice looked after AB on September 24, 2009 when Dean had to attend an unrelated court case, not Dianne.

54I found that Richard testified in a straightforward manner, he was not shaken on cross-examination, and his evidence was internally consistent. I found him to be a credible witness and his evidence to be reliable.

55Dianne’s son, Sean Coombs, also gave evidence. He moved out of the Etobicoke house in 2011 when he was 25 years old. His written affidavit evidence-in-chief was that:

• He found out about the birth of AB in December 2007 from his grandmother and told Dianne about it; Dianne was very upset when he told her;
• He had been away from the house and moved back in the summer of 2008;
• His mother and Dean started talking in 2008 and texting regarding Dean’s employment issues with his employer; on this point, I note that this is hearsay, since he gave no evidence that he was reading his mother’s texts;
• In 2009, his mother told him that she and K. would be spending time in Jarvis with Dean in the summer, and more time in Etobicoke in winter; this too is hearsay;
• In May, 2009, Dean moved back into the Etobicoke home as a result of the bail conditions;
• Dean and his mother shared a bedroom and had sex;
• He put together a crib for AB, which was put into the bedroom of Dean and his mother;
• AB spent a lot of time with them, both at Etobicoke and Jarvis;
• Richard McCauley and his daughter would visit and they would go to a park, and his sister Nicole’s children would play with AB;
• His mother, Dean and AB were “carrying on as one happy family”. They regularly had family barbecues together at his sister Nicole’s or her friend Sylvia’s and Dean would join when he was done at the course, with or without AB;
• His mother told him she broke up with Dean in 2011.

56Much of Sean’s testimony was lacking in detail as to time, and much of it is hearsay. He assumed that early morning texts were from Dean, but agreed that was an assumption. He agreed that much of the information in his affidavit was based on information his mother told him. He referred to a few summer barbeques in the backyard, but does not mention any other shared meals, birthdays or holiday celebrations over 1.5 years. As someone allegedly living where Dean lived two days a week, other than some evidence of Dean attending backyard barbecues in the summer, Sean gave no evidence that the parties regularly socialized, ate meals together, shopped for groceries, cooked, cleaned, or did the normal upkeep of households together – there was little detail.

57In addition, Sean’s evidence is clearly motivated and perhaps understandably crafted to help his mother meet what he understood to be the legal issue in this case. He is protective of his mother. As he stated in his affidavit:

For Dean to state that he was separated from my mother and effectively disentitling her to any equalization payment is purely a selfish motivation. My mother spent so many years of her life dedicated to Dean. She loved him and was willing to overlook and forgive his many transgressions…She has lived in the [Etobicoke] home for 22 years…and this was the matrimonial home. We certainly all lived there from 2004 to 2011 and never once did Dean tell us to get out during this time because they were “separated.” My mother should be entitled to her share.

If Dean had truly separated from my mother in August 2004 and never reconciled, then he should have properly given my mother her entitlement back then.

58I do not find Sean’s evidence to be reliable; where his evidence conflicts with that of Alice, Richard or Dean, I prefer their evidence.

59Cosmo Federico, Dianne’s son-in-law, also gave evidence. In his affidavit he states that he saw the parties together as a couple between April 2008 and May 2009, although Dianne states they did not reconcile until June or July 2008. In fact, Dianne relies on this to explain why Dean was not listed in her father’s obituary in April 2008 or at her father’s funeral.

60When asked how many times Cosmo saw Dean between 2009-2010, Cosmo on cross-examination responded 1-2 times. In re-direct, when asked by Dianne’s counsel, Cosmo then said 3, 4 or 5 times; then said at least 5-6 times, and then changed his evidence again, and stated at least 8 times. Cosmo’s evidence, even with respect to the same repeated question, was inconsistent. He was unsure of his own evidence, and was unable to recall the evidence that he swore to. He referred to summer barbecues, but again gave no evidence of regular meals or holiday celebrations together. Much of his evidence was based on what Dianne told him. Dianne has custody of his two children, and his evidence was clearly designed to support Dianne. Cosmo’s evidence is not reliable. Where there is a conflict, I prefer the evidence of Dean.

F. Credibility and Reliability

61This is a case that turns on credibility, since the two versions cannot be reconciled. I must evaluate the credibility and reliability of the witnesses, primarily Dianne and Dean, and their evidence. I do so by referring to facts proved independently of their testimony including documents, the evidence of other credible and reliable witnesses, and considering whether the evidence is corroborated or contradicted by other evidence.

62I consider the motives of the witnesses, the internal consistency of their evidence, and assess overall probabilities and plausibility. In assessing the plausibility of a witness’ story, I must determine what is “in harmony with the preponderance of probabilities, what a practical and informed observer would readily recognize as reasonable in that place and in those conditions”: Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at 356-357. I may believe none, part or all of the witness’ evidence, and may attach different weight to different parts of the witness’ evidence: R. v. D. R. Square, [1996] 2 SCR 291 at para. 93. Finally, I do not weigh the evidence in isolation, but evaluate credibility and reliability on the evidence as a whole.

63Inconsistencies in evidence are often important in credibility assessment. The Court of Appeal has specifically commented on inconsistencies in R. v. A.M., 2014 ONCA 769 at paras. 13-14:

13…[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath…. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

13Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned…

64I found Dianne’s evidence to be inconsistent with contemporaneous documents that do not depend on human recollection (phone and credit card records, photographs), and her version of cohabitation of 1.5 years between the two houses to be implausible. Her evidence at trial was inconsistent with her sworn affidavit evidence given in 2009, on the key material issue of whether the parties were cohabiting in May-June 2009 and demonstrates “a carelessness with the truth.” The lack of any supporting documents – birthday cards or photos with the various children and grandchildren, texts or emails to support a 1.5-year period of cohabitation – is critical. She often provided additional information, not elicited by the question, where she perceived it would explain or be helpful to her position. Several times she was unable to explain a version of events inconsistent with contemporaneous documents or gave explanations that did not seem plausible. I have already commented on the frailties of the evidence of Dianne’s supporting witnesses.

65Much of the cross-examination of Dean was dedicated to collateral facts, not relevant to the issue in dispute, about events now over 14 years in the past, and designed to be embarrassing. I find him to be a credible and reliable witness. While the cross-examination about his business and other collateral matters appears to have been adduced to demonstrate a history of lying, extra-marital affairs or a motive to fabricate, in the context of all of the evidence in the case, I found him to be a credible and reliable witness. His evidence was internally consistent, consistent with contemporaneous written documents, he was not shaken on material points in cross-examination, his version of events was plausible and reasonable, his answers to questions were direct, he conceded frailties and clouded recollection due to the passage of time when appropriate, and I accept his evidence on the material points. I have already commented on the reliability of Dean’s supporting witnesses.

66For the reasons set out above, where there is a conflict between the evidence of Dianne and Dean, I accept Dean’s evidence.

G. Conclusion

67I make the following findings with respect to the date of separation.

(b) Physical separation, including occupying separate bedroom, maintaining separate residences and reasons for maintaining separate residences:

68I find that the parties have maintained separate residences since August 2004, and did not cohabit in a conjugal relationship after that time.

69Dean left the Etobicoke home in August 2004. He moved in with Sheila in 2005. Dean purchased a home in Jarvis, where he resided with Sheila, AB and Sheila’s children until they separated in May 2009. He began dating Alice in September 2009, and she was a frequent visitor (2-3 times a week) until December 2009. He began dating Carla in 2010; Mr. Michell of the OCL met Carla in 2011 as Dean’s new partner, in the course of the OCL investigation, and was informed that they had been dating since 2010.

70There is no credible evidence that Dianne lived with Dean at Jarvis 2-3 days a week in Jarvis and in Etobicoke 2 days a week from July 2009 to January 2011. Dean’s credit card purchases and Dianne’s debit card purchases do not support this. Dean’s commuting schedule to Kitchener to pick up and drop off AB, combined with Alice’s testimony, lead me to find that Dean and Dianne were not cohabiting between Etobicoke and Jarvis as alleged. The phone records and complete lack of contemporaneous written documentation also lead to me find that they were not cohabiting in this period. I find that Dean and Dianne have lived separately, and have not cohabited, since August 1, 2004, except for the period where bail conditions require he live in Etobicoke, at which time I find he simply occupied a room, and did not have an intention to cohabit conjugally. Of note, as soon as his bail conditions were varied, he moved back to Jarvis.

(c) Sexual intimacy/Attitude of fidelity

71Dianne’s evidence is that in the alleged period of reconciliation, they had sex 2-3 times a week. I have found that they were not together during this period. Dianne highlights some reference to sex in texts sent in 2008 which Dean classifies as flirting– notably, there are no texts or e-mails referring to sex during the alleged period of cohabitation. Sean gave evidence that Dean and Dianne were having sex in this period; I do not accept his evidence. In any event, occasional acts of intercourse do not necessarily imply periods of cohabitation in a conjugal relationship.

72I also consider the “attitude of fidelity.” I accept that Dean was engaged in three serious relationships with 3 women from 2005 to at least 2011. This is inconsistent with a joint intention to cohabit conjugally with Dianne.

(d) Communication between the spouses and discussion of family problems as well as planning for the future

73There is almost no evidence of communication between the two parties, aside from occasional phone calls in 2009 (which were infrequent, and of short duration). There were no texts or emails in the relevant period. There is no evidence of planning for the future, sharing of family problems, or anything else. There is no evidence that Dean talked about reconciliation, or led Dianne to believe that they would reconcile, and no evidence that they did cohabit conjugally for 1.5 years as alleged. Indeed, the evidence is all to the contrary - particularly the contemporaneous phone and credit card records, and the lack of any contemporaneous records documenting a cohabiting conjugal relationship.

(e) Joint social activities, celebrating social occasions together, gifts, helping each other through difficult times, vacations together

74Other than two social occasions when Dean brought AB to Toronto and met up with Dianne and her grandchildren in the summer of 2009, I find that the parties did not celebrate birthdays, children’s birthdays, did not socialize, exchange gifts, or vacation together. While Dianne did help Dean to a certain extent with a lawsuit, this was consistent with the friendly relationship the parties maintained after their 2004 separation. All the other indicia, as discussed, are more consistent with a lack of intention to reconcile than a reconciliation.

(f) Meal pattern, including eating meals together; performance of household tasks, including washing clothes, cleaning and shopping

75There is no evidence that the parties ate meals together, performed household tasks together or for each other; there is no evidence of cleaning, cooking or shopping together.

(g) The relationship and conduct of each of them toward members of their respective families and their friends, and how the friends and families behaved towards the parties;

76As set out above, I find that in the period May 2009 to January 2011, the parties did not refer to themselves as a couple, or otherwise hold themselves out as a couple. Rather, Dean was in a series of relationships with other women, with whom he spent time and socialized. His friend Richard denied that Dean and Dianne were reconciled in this period. They did not share Christmas, Easter, Thanksgiving or birthdays.

(h) The financial arrangements between the parties

77Dean paid for the expenses of the Etobicoke home at all times following the August 2004 separation, including during a period Dianne concedes they were separated. The continued payment of the bills does not provide an indicator of a reasonable prospect of reconciliation.

78The other financial arrangements do not reflect the provision of or contribution toward the necessaries of life (food, clothing, recreation, etc.), and do not reflect the sharing of assets. After May 2009 there were no steps taken to combine the parties’ assets; there were no joint credit cards or bank accounts, and the parties used their assets as separated persons.

(i) How the parties referred to themselves in documents, including income tax returns, and to friends and families

79In 2008, Dean identified himself as a common-law spouse of Sheila; from 2009 onwards, he identified himself as single on tax returns. Dianne identified herself as separated on tax returns. This did not change for the period 2009 to 2010 for either of them.

80In her affidavit of June 5, 2009, Dianne swore that the parties had separated on August 1, 2004 and "notwithstanding their separation, they remain close." She did not state that she and Dean were reconciled and that she and Dean were cohabiting together between the Etobicoke and Jarvis homes on June 5, 2009, although that is what she claims in this litigation.

81Dianne's second affidavit, dated July 21, 2009, states that Dean had moved back to the Jarvis home because his bail conditions had been varied. Dianne did not claim, as she now does, that she and Dean were cohabiting in Etobicoke and Jarvis.

82It is contradictory and detrimental to Dianne's credibility that she swore those affidavits which led the court to believe that they were separated, and she now claims differently. This is a significant inconsistency on a material issue, that emerges "from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions:" R. v. A.M., 2014 ONCA 769 at para. 13.

(j) Steps taken towards the legal termination of their relationship or efforts to resume cohabitation

83After separating in 2004, neither party filed for divorce. It is equally clear, however, that Dean had no intent to cohabit again with Dianne. He entered into three serious, monogamous relationships, and fathered a child with another woman. Dianne’s evidence is that somehow, without much communication, they simply entered into a cohabitation relationship with conjugal intent. There is no actual evidence of meaningful efforts to resume cohabitation (mediation, counselling, “meaningful discussions…as to if, how or when their marriage might be put back together”).

84While Dianne may very much have wished that the parties would reconcile, I find nothing in the record to support a joint intention of a reasonable prospect of cohabitation at any time after August 2004. Dianne’s case is that they indeed cohabited from May 2009 to January 2011. I find that they did not. On all of the evidence, I find that the parties separated with no reasonable prospect or expectation of cohabitations of August, 2004.

85As the successful party, Dean is presumptively entitled to costs. His costs submissions, no more than 3 pages plus Bill of Costs and Offers to Settle, shall be provided by April 1, 2019

86Dianne’s responding costs submissions, no more than 3 pages, shall be provided by April 15, and reply (if any) by April 19.

87I draw Dianne’s attention to the following statement by Justice Chappel in Beaver v. Hill, 2018 ONSC 3352 at para. 46:

46A useful benchmark for determining whether costs claimed are fair, reasonable and proportional is to consider the amount that the other party has paid for their own legal fees and disbursements in the matter (Smith Estate v. Rotstein, 2011 ONCA 491 (C.A.); Durbin v. Medina, 2012 ONSC 640 (S.C.J.); Scipione v. Del Sordo, 2015 ONSC 5982 (S.C.J.)). Although there is no requirement that a party resisting costs file their own Bill of Costs, it is preferable that they do so to assist the court in dealing with costs in a fair and reasonable manner (Risorto et al. v. State Farm Mutual Automobile Insurance Co., 2003 ONSC 43566 (S.C.J.), at para. 10). Failure on their part to provide details regarding their own costs is a factor that the court may take into account in considering the reasonable expectations of the losing party, and may entitle the court to draw an adverse inference (Smith Estate, at para. 50; Scipione, at para. 126; 206637 Ontario Inc. (c.o.b. Balkan Construction) v. Catan Canada Inc., 2013 ONSC 5448 (S.C.J.), at para. 7). Consideration of the other party’s Bill of Costs is particularly helpful if that party challenges a costs claim on the basis of alleged excess and over-lawyering (Mullin v. Sherlock, 2017 ONSC 6762 (S.C.J.), at para. 89; Brar v. Brar, 2017 ONSC 6372 (S.C.J.), at para. 30; Bielak v. Dadouch, 2017 ONSC 4255 (S.C.J.), at para 10). As Winkler J. stated in Risorto, at para. 10, such allegations amount to “no more than an attack in the air” if the unsuccessful party fails to produce their own Bill of Costs. In addition, a significant discrepancy in the amount of fees that the parties have incurred may prompt the court to embark upon a more detailed scrutiny of the costs claimed to ensure that the amount meets the overall objectives of a costs order (Jackson, at para. 99).”

88If Dianne’s counsel intends to challenge quantum, and not simply scale of costs, she should file her Bill of Costs as well.

Kristjanson J.

Released: March 18, 2019

COURT FILE NO.: FS-16-411918 DATE: 20190318 ONTARIO SUPERIOR COURT OF JUSTICE ELIZABETH DIANNE WARREN Applicant – and – DEAN ROSS WARREN Respondent

REASONS FOR DECISION Kristjanson J. Released: March 18, 2019