COURT FILE NO.: FC-12-2425-0 DATE: 2019/05/17 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HÉLÈNE GEORGETTE BOYER Applicant – and – MICHAEL BROWN Respondent
Self-Represented Self-Represented HEARD: October 9-12, 2018
REASONS FOR JUDGMENT
CORTHORN J.
Introduction
[1] The issues to be determined on this application are numerous. They include spousal support, child support, custody, access, and equalization of net family property. The parties executed a separation agreement in which they identified the date of separation, agreed to close their joint bank account as of a certain date, and addressed the applicant’s purchase of the respondent’s interest in the matrimonial home. Each of the parties now wishes to set aside at least a portion of the separation agreement:
- The parties no longer agree that the separation agreement accurately reflects the date of separation; and
- The respondent no longer accepts that he has been adequately paid for his interest in the matrimonial home.
[2] The application proceeded to trial with respect to the validity of the separation agreement. All other issues remain to be tried at a later date.
Background
[3] Hélène Boyer and Michael Brown were married in June 1995. They have three children: Stephanie (D.O.B., November 28, 1995); Olivier (D.O.B., March 6, 1997); and David (D.O.B., June 22, 1999). Mr. Brown has an adult son, Mark, from a previous relationship. Mark lived in the Boyer-Brown home for a number of months in 2010 and 2011.
[4] From June 1997 until the spring of 2008, the family lived in a home located on Des Sapins Gardens in Orleans. It is undisputed that, even prior to that time, there were challenges in the marriage.
[5] In the spring of 2008, Ms. Boyer and Mr. Brown purchased a home at 483 Keith Crescent in Orleans (“the matrimonial home”). It is undisputed that, throughout the time the parties lived in that home, Ms. Boyer slept in the master bedroom and Mr. Brown in a separate bedroom, located on the ground floor. That sleeping arrangement continued until December 19, 2011, when Mr. Brown moved out of the matrimonial home.
[6] The parties executed a separation agreement on November 18, 2011 (“the Agreement”). They did so after reviewing at least two prior drafts of the separation agreement.
[7] Paragraph 1.2 of the Agreement states that, “[the] parties both agree that they have been living separate and apart in the same house since April 15, 2008”. The only financial issues addressed in the Agreement relate to the matrimonial home and the parties’ joint bank account. In summary, paragraphs 2.1 to 2.7 of the Agreement provide as follows:
- Ms. Boyer purchased Mr. Brown’s interest in the matrimonial home for $117,000; and
- The parties’ joint bank account with TD Bank would be closed.
[8] The parties’ respective acceptance of the terms of the Agreement is set out in sub-paragraphs 3.1.1 to 3.1.3 of that document. In those sub-paragraphs, the parties each “acknowledge and agree” that:
- They had the opportunity to obtain independent legal advice;
- The facts set out in the Agreement are true and accurate;
- They “read and understood” the Agreement; and
- “[They] each signed the Agreement as “free agents, without any pressure, influence or intimidation by anyone.”
[9] The respective signatures of the parties to the Agreement are witnessed by the same individual.
[10] Despite the contents of the “Acceptance” section of the Agreement, both parties now each allege that they signed the Agreement under duress or pressure. Ms. Boyer alleges that as a result of the pressure she was under, she agreed to identify the date of separation as April 15, 2008. She alleges that the date of separation was actually in either May or September of 2011. Ms. Boyer seeks to have the Agreement set aside in its entirety, including with respect to the date of separation.
[11] Mr. Brown says the April 2008 date of separation is accurate. He alleges that in April 2008 (a) he learned of Ms. Boyer’s infidelity, and (b) made it clear to Ms. Boyer that the marriage was over.
[12] Ms. Boyer says that her infidelity was not disclosed to Mr. Brown until 2011; Mr. Brown’s position is said by Ms. Boyer to be based on revisionist history. Ms. Boyer alleges that Mr. Brown was motivated to select April 2008 as the separation date in an effort to receive more favourable treatment with respect to his pension for the purpose of the equalization payment issue.
[13] Mr. Brown alleges that, when he signed the separation agreement, he was the person under pressure, not Ms. Boyer. Mr. Brown requests that the terms of the Agreement dealing with the value of his interest in the matrimonial home be set aside. He claims that his interest in the matrimonial home would, when based on a separation date of April 15, 2008, be valued at an amount in excess of $117,000.
[14] The parties were ordered to proceed to trial for a determination of the issues related to the terms of the Agreement. Once those issues have been determined, the parties will be in a position to address the remaining issues (custody, access, child support, spousal support, etc.).
The Issues
[15] The issues to be determined at this time are:
- What is the date of separation?
- Is the Agreement valid as it relates to (a) the date of separation, and/or (b) the valuation of the matrimonial home?
Issue No. 1 – Date of Separation
a) The Law
[16] The date of separation is important because it will, in the circumstances of this case, provide the “valuation date” for the purpose of calculating (a) the value of the net family property, and (b) the equalization payment to be made by the payor spouse.
[17] The term “valuation date” is defined in s. 4 of the Family Law Act, R.S.O. 1990, c. F.3 (the “Act”). The “valuation date” is the “earliest of” five potentially triggering events. These events, other than separation, include, for example, “[the] date a divorce is granted” and “[the] date the marriage is declared a nullity” (items 2 and 3, respectively).
[18] The date of separation is the only potential triggering event applicable to Ms. Boyer and Mr. Brown. The parties do not agree on the date of separation.
[19] To determine whether a separation has occurred, it is necessary to look at (a) whether there is an event of separation, and (b) how the parties lived their lives after that event (O’Brien v. O’Brien, 2013 ONSC 5750). All of the circumstances are to be measured objectively (Czepa v. Czepa, 16 R.F.L. (3d) 191 (Ont. H.C.)).
b) The Positions of the Parties
[20] Ms. Boyer’s position is that the choice made by Mr. Brown, in April 2008, to sleep separately, is not determinative of when the parties separated. She alleges that until either May or September 2011, the parties conducted themselves as a couple. Ms. Boyer points to family vacations, the management of the couple’s finances, how they filed their respective income tax returns, social settings, and day-to-day family activities. For a number of months in 2010, the parties participated in couples’ counselling.
[21] Ms. Boyer acknowledges that her infidelity occurred prior to April 2008. She says that she could not bring herself to disclose her actions at the time; it was not until 2011, when confronted by Mr. Brown with online photographs of her with the man with whom she had the affair, that she disclosed the infidelity to Mr. Brown.
[22] Ms. Boyer’s position is that it was not until either May or September 2011 that the relationship was damaged to the point of no possibility of reconciliation.
[23] Mr. Brown says that it was on April 15, 2008 that (a) Ms. Boyer’s extramarital affair was disclosed to him, and (b) he considered the marriage to be over because he could not get over the betrayal. Mr. Brown says that it was specifically because of the betrayal that he chose to permanently sleep in a separate bedroom in the matrimonial home.
[24] Mr. Brown says that all of his conduct from April 2008 until December 2011 was focussed on providing continuity, stability, and a normal environment for the parties’ three children. He says that the parties were, from April 2008 forward, otherwise living separate and apart under the same roof.
c) Analysis
[25] Mr. Brown’s position with respect to the April 2008 date of separation is premised entirely on what he describes in his examination-in-chief as an “abrupt and catastrophic event”. His evidence is that on April 15, 2008, Ms. Boyer disclosed her infidelity to him. In cross-examination, Mr. Brown could not recall whether April 15, 2008 was before or after the family moved from Des Sapins Gardens to the matrimonial home. Mr. Brown was unable, in cross-examination to recall the details of the discussion and/or disclosure of Ms. Boyer’s infidelity.
[26] In cross-examination, Mr. Brown testified that in response to the disclosure of infidelity he told Ms. Boyer that (a) if she wanted to be with someone else then their relationship was over, and (b) he could not accept her infidelity.
[27] It is difficult to reconcile Mr. Brown’s vague description of a “catastrophic event” and his description of his reaction to it with his conduct in the 3.5 years from April 2008 until late 2011, when he moved out of the matrimonial home. With respect to the latter, Mr. Brown acknowledged the following:
- The parties made no changes to their relationship; they maintained their singular, joint bank account;
- The parties continued to identify as “married” in their respective income tax returns;
- In 2008, 2009, and 2010, they, “for the most part”, made financial decisions together;
- They continued to participate in family events (including extended family) and holidays, such as Christmas, as a family unit; and
- The parties each had a credit card in their name for their Desjardins Visa card.
i) Vacations with the Children
[28] It is undisputed that from April 2008 to December 2011, the parties took two family vacations with the children. In March 2009, the entire family travelled to Niagara Falls for a few days. The parties recall differently the precise sleeping arrangements—including the number of hotel rooms occupied. I find that the differences in their evidence in that regard are not material to this issue.
[29] It is also undisputed that the family took a canoe trip in the summer of 2009.
[30] Lastly, it is undisputed that, from time-to-time, each parent travelled with one or more of the children, while the other parent and children remained home. Mr. Brown acknowledges that on these separate vacations the children had a nice time with their parents.
[31] I find nothing unusual about the vacations taken separately by each of the parties with one or more of the children. There is no evidence to suggest that these separate vacations were the result of the parties separating. I find that the separate vacations are indicative of (a) the children having different interests based on their respective ages, and (b) the economics of vacationing as a family of five versus in smaller numbers (to Disney World, for example).
ii) Socializing as a Couple
[32] It is undisputed that the parties socialized together to a limited extent from April 2008 to December 2011. Mr. Brown acknowledges that there was civility to the situation when they socialized together. Mr. Brown acknowledges, for example, that he attended with Ms. Boyer at one of her work-related events. His evidence is that he did so because the event related to the economic well-being of the family (Ms. Boyer had been awarded a contract). Mr. Brown testified that he wanted to make things look good.
[33] Mr. Brown testified that (a) the civility of this kind was really for the benefit of the children, and (b) things would not have been any different had the parties been living in separate houses. The latter statement demonstrates Mr. Brown’s lack of understanding as to what is required to support a finding that a separation has occurred. Physical separation alone does not constitute a “triggering event”.
iii) Couples’ Counselling
[34] It is undisputed that in 2010 the parties attended couples’ counselling for a period of approximately six months. The only documentary evidence of the sessions attended identifies that Ms. Boyer attended one session on her own; Mr. Brown attended two sessions on his own; and the parties attended as many as 13 sessions as a couple.
[35] Ms. Boyer’s uncontradicted evidence is that (a) she first raised the possibility of couples’ counselling with Mr. Brown in 2008, and (b) he did not want to participate, preferring that they work on their marriage on their own. Ms. Boyer’s evidence is that she raised the possibility of couples’ counselling in 2009; again to no avail.
[36] It was not until Ms. Boyer raised couples’ counselling for the third time that Mr. Brown agreed to participate. I accept Ms. Boyer’s evidence and find that her motivation on each occasion that she suggested couples’ counselling was in an effort to work on the marriage.
[37] In cross-examination, Mr. Brown testified that couples’ counselling was “a bit of a mixed bag” for him. His evidence is that he agreed to participate for reasons other than the potential to improve his relationship with Ms. Boyer. For example, he was interested to see how he might benefit from counselling, as an “interesting process”. He was also interested to see what he could learn about marriage for himself (i.e. what he should be looking for).
[38] There is no evidence that Mr. Brown made Ms. Boyer aware of those or any other reasons for his decision to attend couples’ counselling. Even if those were some of Mr. Brown’s reasons for attending counselling, I find that he (a) kept them to himself, and (b) did nothing to indicate to Ms. Boyer that his motivation for attending counselling was anything other than an effort to work on the marriage. Even if Mr. Brown had, by 2010, given up on the relationship with Ms. Boyer, he did so in secret. It is not possible to effect a separation from one’s spouse in secret: Chan v. Chan, 2013 ONSC 7465, additional reasons provided, 2014 ONSC 666.
[39] It is undisputed that as Ms. Boyer began to pursue her own interests, including long-distance running, Mr. Brown became concerned about (a) Ms. Boyer’s time away from him, the children, and the family home, and (b) the impact Ms. Boyer’s personal choices, including those related to her work, were having on the family’s finances. It is also undisputed that the quality of the relationship between Ms. Boyer and Mr. Brown deteriorated from 2008 forward.
iv) Disclosure of Infidelity
[40] Ms. Boyer’s evidence is that in early 2011 she reconnected, on a platonic basis and through running, with the man with whom she had an affair. I accept her evidence that by the spring of 2011 she concluded that her marriage to Mr. Brown was broken and informed Mr. Brown that she wanted to separate. I also accept her evidence that prior to that time, having kept her affair secret, she considered it too difficult to disclose the affair out of concern for the hurt she would cause.
[41] I accept Ms. Boyer’s evidence that she was compelled to disclose the affair when confronted, in May 2011, by Mr. Brown with photos he found online of her running with the man with whom she had had an affair in 2007.
[42] Ms. Boyer’s evidence is that by the end of May 2011, she had formed the belief that there was no chance of reconciliation. There is, however, no evidence as to whether, at that time, she informed Mr. Brown of her belief in that regard. Even Ms. Boyer’s statement, of her desire to separate as of the end of May 2011, in the absence of any action to do so does not amount to separation for the purpose of s. 4 of the Act (LeClair v. Leclerc).
[43] In an email exchange that commenced on August 31, 2011 and concluded on September 6, 2011, the parties discussed a separation agreement and divorce. In the absence of any other specific evidence of a discussion of these subjects, I find that the date of separation is August 31, 2011—the date of Ms. Boyer’s first of two emails in the exchange.
[44] Mr. Brown’s responding email of that date is interesting because of the manner in which he references Ms. Boyer’s affair. In the message he says, “I have been processing the last four years differently now, with the knowledge of your affair and absorbing that reality.” In cross-examination, Mr. Brown’s evidence was that he was expressing that he questioned whether he should have pushed for the sale of the matrimonial home at an earlier date. He explained that he was looking back at how he had, for four years, been handling his knowledge (i.e. from the spring of 2008 forward) of the affair.
[45] That explanation lacks plausibility—in particular when the next sentence in Mr. Brown’s email is considered. It says: “You have had time to process your feelings”. I draw an inference and find that statement to be a comparison between Mr. Brown having learned of the affair only a number of months earlier, and Ms. Boyer having been in a position, for four years, to consider her feelings for the two men in her life.
v) Evidence of the Children
[46] Each of the parties called, as a witness, one of the children living in the home between 2008 and 2011. Ms. Boyer called the parties’ middle child, Olivier Brown. Mr. Brown called Mark Brown, his son from a prior relationship.
[47] Olivier was approximately 11 to 14 years old from 2008 to 2011. His evidence is that there was tension between his parents in those years. It was not until 2011 that the tension escalated notably. He learned in 2011 that his parents were separating. He was unable to recall exactly when he was told of the separation.
[48] Mark Brown was an adult when he lived in the matrimonial home from November 2010 to December 2011. He was between jobs at the time. As a result, he was at the matrimonial home quite often. In the time that he lived in that home he observed the parties communicate as needed with respect to his half-siblings. He testified that he saw no displays of affection between the parties.
[49] I found both Olivier and Mark to be fair in their respective evidence of observations made. Neither of them made any attempt to “slant” their evidence. It is clear that they have each done their best to maintain a respectful relationship with both parties. To their credit, and that of their siblings, it is also clear that they have each continued to do their best to maintain connection between all siblings.
[50] Olivier and Mark were placed in a difficult position by being asked by one of the parties to testify at trial. They were both impressive in how they handled the situation.
[51] There is nothing in the evidence of either of Olivier or Mark to support a finding of separation prior to August 31, 2011.
d) Summary
[52] The circumstances of the parties from April 2008 to September 2011, when viewed objectively, support the finding that they did not separate until late in the summer of 2011. By that time, Ms. Boyer’s affair had been disclosed and both parties agreed that the marriage was over. Until that time the parties (a) presented themselves as a couple to the public and to external family when the occasion arose, (b) continued to operate their finances jointly, and (c) carried on within the nuclear family unit for the benefit of their children.
[53] The date of separation is August 31, 2011.
[54] It is not necessary to determine whether Ms. Boyer was under duress, etc. when she agreed to execute the Agreement as it relates to the date of separation. Even if Ms. Boyer was not under duress, the parties were not entitled to unilaterally select, as a date of separation for the purpose the Agreement, a date other than the actual date of separation.
[55] The actual date of separation is relevant, for example, for the parties when filing income tax returns. The Canada Revenue Agency relies on the actual date of separation.
[56] The only other issue before me at this time is the validity of the Agreement.
Issue No. 2 – Validity of the Agreement
a) Date of Separation
[57] For the reasons set out above, the terms of the Agreement relating to the date of separation are set aside.
b) Interest in Matrimonial Home
[58] Mr. Brown requests that the Agreement be set aside with respect to the monetary value of his interest in the matrimonial home. Pursuant to the Agreement, Ms. Boyer paid Mr. Brown $117,000 to purchase his interest in the matrimonial home.
[59] Ms. Boyer requests that the Agreement be set aside in its entirety, including with respect to her purchase of Mr. Brown’s interest in the matrimonial home.
[60] No evidence was led by either party as to the fair market value of the matrimonial home in April 2008, May 2011, or September 2011 (i.e. as of August 31, 2011). There is no evidence before the court as to the equity in the matrimonial home at any of those times.
[61] Before I decide the issue of validity of the Agreement—including as it relates to the amount of Mr. Brown’s interest in the matrimonial home—it is preferable that the parties have an opportunity to (a) gather the evidence relevant to the potential value of the matrimonial home; and (b) attempt to resolve the balance of the issues that remain to be determined before the trial is continued.
[62] I therefore defer a decision with respect to the validity of the separation agreement, other than as relates to the date of separation, until the parties have had an opportunity to consider their respective positions on the remaining issues—specifically in light of the identification of August 31, 2011 as the date of separation.
Disposition
[63] For the purpose of determination of the issues between the parties, the date of separation is August 31, 2011. Prior to the continuation of the trial, the parties shall:
a) Attend a case conference, the purpose of which includes setting timelines for the exchange of up-to-date financial statements and any other documents required—based on a separation date of August 31, 2011;
b) Attend a trial management / settlement conference as scheduled by the master or judge who presides over the case conference; and
c) After attending the trial management / settlement conference, schedule the continuation of the trial, before me, by contacting the office of the Trial Co-ordinator.
[64] I remain seized of the matter for the continuation of the trial.
Costs
[65] The issue of costs of the trial to date is reserved until the conclusion of the trial on all issues.
Madam Justice Sylvia Corthorn