ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: D26473/18 DATE: 2019/07/09
B E T W E E N:
Patricia Francis Gibson Applicant
Douglas R. Thomas, for the Applicant
- and -
Jerrold Wayne Gibson aka Jerrod Wayne Gibson Respondent
Ronald F. Adams, for the Respondent
HEARD at Welland, Ontario: June 26, 2019
The Honourable Justice T. Maddalena
ENDORSEMENT ON THE TRIAL OF AN ISSUE
[1] I heard this long motion pertaining to the trial of an issue at Welland on June 26, 2019.
[2] The applicant and the respondent disagree on the date of separation for the purposes of the Family Law Act. The applicant wife submits the date of separation is April 2014. The respondent husband submits the date of separation is January 2012.
[3] If the husband is correct, then either party’s claim for equalization of net family property is statute-barred, since the wife’s application to the court for equalization is dated May 9, 2018. The husband’s answer is dated June 21, 2018.
[4] Potentially, and if the husband is correct, this would mean that his teacher’s pension remains unequalized in his favour and the wife’s casino pension also remains unequalized in her favour.
Basic Background Facts
[5] These parties were married, according to their marriage certificate, on July 26, 1980. (Note: the application states, in error, that the date of marriage is July 20, 1980.)
[6] From the sworn affidavits of the parties, it is fair to say that this was not a happy marriage. The parties have three children of their marriage, none of whom is dependent at the time of this application.
[7] The respondent is a retired school teacher. The applicant is employed during the evening shift at Casino Niagara.
[8] The applicant’s father was hospitalized on or about January 2012. When he returned home, after a diagnosis of a terminal illness, the applicant spent a lot of her days assisting in his care at his home. She continued to do so until he died in April 2014.
Analysis
[9] For reasons which follow, I conclude that the date of separation of the applicant and the respondent is April 2014.
[10] There is no one incident or event that leads the court to conclude that the correct date of separation is April 2014, but rather an accumulation of various findings, factors, and pieces of documentary evidence which lead the court to the inevitable conclusion that the date of separation is April 2014, and not January 2012.
[11] The respondent deposes in his affidavit that the applicant made it clear to him that from January 2012 the parties were separated and that the separation was permanent. The respondent further deposes in his affidavit that the applicant asked him not to announce their separation in January 2012 so as not to disturb her gravely ill father. So, according to him, that is exactly what the respondent did. That is, he did not discuss the separation with anyone (even members of his own family or his friends) until after the applicant’s father died in April 2014.
[12] The applicant completely refutes these allegations. With respect to her father, the applicant states that he was afflicted with severe dementia and actually had little knowledge of what was going on around him. She further states that her family dynamics are such that if she were separated, her close family members, such as her sister, would clearly know about the separation.
[13] I find this to be credible information from the applicant and find equally incredible from the respondent that for two years, while he considered himself to be separated, he has produced no evidence of any type to support his position. There is not even an email or a text message or a lawyer’s letter confirming the separation and the alleged agreement between the parties to keep it fully confidential until after the applicant’s father’s death (which at the time would have been an event with an unknown date).
Income Tax Returns
[14] It is clear and undisputed that income tax returns were filed by the respondent and the applicant for the years 2012, 2013 and 2014 showing a married status. The respondent states that this was just a pop-up pro forma completion of the forms that he did not pay attention to.
[15] I do not find this evidence credible. The respondent is a teacher. Immediately below on the tax return where he is required to execute the form, is the Canada Revenue Agency (“CRA”) notation that every party executing the tax return is required to tell the truth. The form also notes that there are penalties for making false statements. He executed the forms and forwarded these forms to CRA. There is no dispute as to his signatures for the years 2012, 2013 and 2014 confirming the married status.
[16] The first time the tax returns of the applicant and respondent show a separated status is the year 2015. This is all consistent with the position of the applicant.
Applicant Wife’s CPP Correspondence
[17] The wife deposes in her affidavit that at one time she was required to update her marital status for CPP purposes. Accordingly, she was provided a questionnaire from CPP. Although the document the applicant wife provided is undated, it is clear from the document that she indicates that she considered herself as separated effective August 2014. The form contains a notation, “going through a divorce at present time”. The applicant states the respondent husband received a similar document, but this document is not in evidence before the court by the respondent.
The Matrimonial Home
[18] The parties’ matrimonial home was situated at 725 Webber Road, Welland consisting of a home plus 25 acres of farm property. The applicant deposes that she went from assisting and looking after her ill father to the matrimonial home to assisting there in cleaning up and to work in the evenings at the Casino. She continued to go back and forth from the matrimonial home to her parents’ home during the period of her father’s illness from 2012 to 2014. She further deposes in her affidavit that the respondent came over to eat meals at her parents’ home during this time period. She further deposed that she continued to do the respondent’s laundry at her parents’ home. She also went to the matrimonial home to clean up and prepare meals for the family all the while continuing household maintenance, laundry, etc.
[19] There is no evidence that the respondent had actual exclusive possession of this home during the time period at issue. In fact, the evidence is just the opposite. The applicant deposes in her affidavit that there was a flood in the basement of the matrimonial home in on or about 2012 and the respondent called the applicant to look after the insurance claim as he had no idea what to do or whom to call. The applicant deposes that the property loss notice was completed by her and is dated October 31, 2012. She further states in her affidavit that she arranged for all the work to be done with regard to the basement flooding and looked after the complete restoration project. There is no indication in any of the documents of the parties that they were separated.
Social Events
[20] The applicant states that from 2012 until 2014 the applicant and the respondent continued to attend all social events together.
[21] Paragraph 25 of her affidavit sworn May 7, 2019 states as follows:
Throughout 2012, and 2013, and 2014 to the date of my father’s death, Wayne regularly came to my parents’ home, and I did his laundry that he brought over, and he had meals with my parents and I. I sent him home with meals as well. As I have stated we also attended family events together.
[22] In paragraph 26 she further stated, “We … had sexual relations occasionally after 2012.”
[23] The respondent disputes the aforementioned but what is singularly missing from the respondent is any piece of documentary evidence that supports his position that the separation occurred in 2012.
[24] There is clear documentary evidence to support the applicant’s position.
The Payment of Bills
[25] For the period 2012, 2013 and 2014, the respondent continued to deposit his pay to the parties’ joint account. The applicant continued to make all of the bill payments for the home and the family from that joint account. I find that this is inconsistent with a separation that occurred in January 2012 but is consistent with a separation occurring in April 2014.
Obituary Notice
[26] The applicant’s father died April 8, 2014. In the published obituary, the applicant states that the respondent is specifically noted as the spouse of the applicant.
[27] Conversely, when the applicant’s mother died in August of 2018, the obituary notice at that time made no reference to the respondent being the spouse of the applicant.
The Affidavit of Michael Gibson
[28] Michael Gibson is one of the parties’ sons. In his affidavit he deposes that from the years 2012, 2013 and up to approximately April of 2014 he was not aware at all of any separation of his parents. He deposes that he became aware of the separation when his mother told him on or about April 2014 following the death of his grandfather.
Affidavit of Sandra Spano Sworn May 7, 2019
[29] Ms. Spano is the sister of the applicant. She confirms that she is very close with the applicant and has witnessed many events through the years 2012, 2013 and 2014. On many of those occasions she confirms that the respondent was at her parents’ home for dinners and other family functions. Ms. Spano noted that the respondent regularly visited her parents’ home, dropped off laundry, had meals at her parents’ home or took meals home. She confirms that there was no indication of a separation of the applicant and the respondent prior to April 2014.
Affidavit of Andree Davis
[30] The affidavit of Ms. Davis is independent as she was the realtor who looked after the sale of the matrimonial home.
[31] Ms. Davis confirms in her affidavit that she attended at the matrimonial home at 725 Webber Road initially in the spring of 2012 to obtain a valuation of the home. At that time she confirms that she met with the applicant.
[32] She returned to the property in early 2014 for the second time and on that occasion met with the respondent. The respondent stated to her that his wife Patricia was not present for the appointment because she was coming and going from the house to care for her ill father.
[33] I note there was no mention of a separation to the realtor at this time by the respondent.
The Affidavit of Kimberly Gatt
[34] Ms. Gatt is an RN working with palliative care persons. Ms. Gatt was visiting the applicant’s father from January 2012 until April 2014. She noted when she attended at the home of the applicant’s parents she observed on many occasions the applicant doing laundry. During visits she noted that she was also introduced to the respondent as the husband of Patricia.
[35] She notes in her affidavit that as a palliative care nurse, she was in the home daily and had the opportunity to observe the family dynamics. She states that she was not aware during the times that she was at the home of a separation between the applicant and the respondent. I find her evidence to be credible.
The Law
[36] Section 4(1) of the Family Law Act defines valuation date as follows:
4 (1) In this Part,
“valuation date” means the earliest of the following dates:
The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
The date a divorce is granted.
The date the marriage is declared a nullity.
The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.
The date before the date on which one of the spouses dies leaving the other spouse surviving. (“date d’évaluation”) R.S.O. 1990, c. F.3, s. 4 (1) ; 2006, c. 19 , Sched. C, s. 1 (2) ; 2009, c. 11, s. 22 (1-4); 2009, c. 33 , Sched. 2, s. 34 (1).
[37] Section 5.1 of the Family Law Act indicates as follows:
When a divorce is granted or a marriage is declared a nullity, 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. R.S.O. 1990, c. F.3, s. 5 (1) .
[38] The case law is abundantly clear that in determining a valuation date, “no one factor is necessarily determinative of the issue of when the parties are separated.” See Neufeld v. Neufeld, 2019 ONSC 1277, para. 74.
[39] The case of Oswell v. Oswell, 1990 CarswellOnt 278, provides guidance in assisting parties to determine a date of separation. The Court noted as follows:
In deciding whether spouses are living separate and apart under the same roof, the court must decide when the parties ceased living as a “couple” and began to live separate lives. The following factors should be considered: there must be a physical separation; one or both spouses must withdraw from the matrimonial obligation with the intent of destroying the matrimonial consortium; the absence of sexual relations is not conclusive but is a factor to be considered; and the level of communication between the spouses must also be considered. The parties led an active social life together and did not claim to be separated on their tax returns. Based on the evidence, the parties did not live separate and apart with no real prospect of reconciliation until January 1988. As a result, January 1988 was the valuation date under the Family Law Act.
[40] I adopt the Court’s position in Oswell with respect to the important factors in assisting in the determination of the date of separation, which in the case at bar I find is April 2014.
[41] In the case of Dai v. Ding, 2019 ONSC 6118, at para. 38, the court noted as follows:
Much of this case turns on credibility as the parties’ versions of various important fact scenarios are completely polarized. A judge has the overriding authority to determine credibility upon weighing all the factors. Considerable weight is placed on the extent to which the testimony is consistent with other, undisputed and proven facts in the case, but no one factor is determinative. Assessment of credibility is not a scientific process and involves a consideration of many relevant factors.
[42] Paragraph 212 of Dai makes reference to the factors in Oswell which is the leading case with respect to factors to be considered in determining the date of separation. In para. 212 the court noted as follows:
Oswell v. Oswell (1990), 74 O.R. (2d) 15 (Ont. H.C.), remains the leading case with respect to the factors to be considered in determining the date of separation where spouses continue to occupy the same premises. In summary, the factors are as follows:
There must be physical separation.
There must be withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium.
The absence of sexual relations is not conclusive but a factors to be considered.
Other matters to be considered are the discussion of family problems and communication between the spouses, presence of absence of joint social activities, and the meal pattern
Although the performance of household tasks is also a factor, help may be hired and for these tasks and greater weight should be given to those matters that are peculiar to the husband and wife relationship outlined above.
Conclusions
[43] I have no evidence, documentary or otherwise, to support the position of the respondent that the separation was January 2012.
[44] The evidence, both documentary and corroborating affidavit evidence, which I do accept, all points the court to a separation in April 2014 completely in keeping with the position of the applicant.
[45] I do not find credible the respondent’s position that the separation occurred in January 2012 but that he made an agreement with the applicant not to reveal the separation until after her father’s death. I accept the applicant’s evidence that her father had severe dementia and unfortunately any such revelation of the parties’ separation would have made little difference to him.
[46] I find that the respondent’s position makes very little sense in the face of the evidence which I do accept. I conclude that there was never any such agreement between the parties as suggested by the respondent, i.e. that the date of separation was in fact January 2012 but the parties agreed that no one would say anything until after the applicant’s father passed away.
[47] The respondent, who is a teacher, has produced not even a simple note, a text message or an email confirming any such agreement. I conclude that no such notes exist because such an agreement did not exist.
[48] Therefore, I find the parties’ separation date and/or valuation date for purposes of the Family Law Act (and even for purposes of the Divorce Act) is April 2014.
Costs
[49] Costs submissions shall be made in writing and are limited to two pages, double-spaced, plus the bill of costs. The applicant shall serve and file by July 19, 2019. The respondent shall serve and file by July 26, 2019. No reply is permitted. If submissions are not received by the dates indicated above, they will not be considered.
Maddalena J.
Released: July 9, 2019