Court File and Parties

COURT FILE NO.: 11115/17 DATE: 2019/07/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

William Bruce Sanderson, Applicant – and – Angela Beth Sanderson, Respondent

Counsel: Self-represented, for the Applicant Barbara Storrey, for the Respondent

HEARD: April 8, 9, and 10, 2019

BEFORE: J. C. George J.

Reasons for Judgment

[1] The parties cannot agree on when they began cohabiting, nor on the date of separation. None of the outstanding issues – spousal support, child support, beneficiary designations, equalization, occupation rent, and sale of the matrimonial home – can be finalized until this is resolved.

[2] On November 2, 2018 Aston J. directed a trial to determine these two issues. Evidence was presented over the course of three days – April 8, 9 and 10, 2019.

[3] The Respondent argues that cohabitation began on April 10, 2010, and that they separated on February 5, 2016. The Applicant argues that cohabitation began in April 2011. He submits that the date of separation is April 15, 2012.

Applicant's Evidence

[4] Including himself, five witnesses testified on behalf of the Applicant. I heard from his daughter from a prior relationship, aunt, brother, and sister-in-law. The Applicant contends that he and the Respondent did not move in together until after they were married in April 2011 and that their relationship broke down long before 2016, evidenced by his move from the matrimonial home, first to the garage, and then to his mother’s.

[5] Including herself, five witnesses testified on behalf of the Respondent. I heard from her two daughters, ex co-worker, and the real estate agent who assisted the parties in purchasing a home in 2015. The Respondent contends that all of the evidence, including the Applicant’s testimony, points to a separation date far-later than 2012. She acknowledges that the Applicant moved to his mother’s home for a period of time but submits this was but a reprieve and that the two remained devoted to each other, and continued to work on their relationship by engaging in counselling, taking trips together, and jointly purchasing a home.

[6] Heather Sanderson is the Applicant’s daughter from a prior relationship. She testified that she did not have a good rapport with the Respondent. She alleged that the Respondent stalked her and that she did not feel comfortable bringing her children to her father’s home, because of her. She believes the parties relationship was but a short-lived one and that they could not have been cohabiting beyond 2012 because, from what she observed, their relationship had become too toxic.

[7] Mary Donnelly is the Applicant’s aunt. She testified about what she knew of that period when the Applicant was living with his mother, her sister. As there is no dispute that the Applicant did reside with his mother, I am not entirely certain why her testimony was necessary. She did not even sound all that sure about what she was describing. For instance, when asked what period of time she was talking about she did not seem to know. When it was suggested to her that it was 2013, she responded by saying that “sounds good”. In any event, her testimony was of little value.

[8] Paul Sanderson, the Applicant’s brother, and his spouse Lisa Kemp, both testified. Paul described himself as the Applicant’s best friend and a trusted confidante. He testified that he became aware of problems in the relationship as early as 2010. He assisted the Applicant with his move to their mother’s home in and around Christmas of 2012. He recalls all of the Applicant’s belongings being moved from the matrimonial home, including his shoes, clothing, work materials, and golf equipment. He does not recall if furniture was moved. In any event, from his perspective his brother seemed to be permanently and finally parting ways with the Respondent.

[9] Lisa testified about the details of this move confirming much of her husband’s evidence. Given what transpired between the parties after this move, their testimony had little import.

[10] The Applicant testified. He spoke about their courtship and early part of the marriage. When the parties first moved in together they did so in the home the Applicant shared with his ex-wife on Clench Ave. in Brantford. The Respondent first started spending the night there in 2010. They were married in April of 2011. He described himself as lonely and drawn to the Respondent because of her work ethic and because she represented a “ready-made family”. The Respondent has five children from her previous relationship. Only three of them – Luke, Stephanie and Emma – were involved with the Applicant. He became particularly bonded with Emma.

[11] During the second year of their marriage – 2012 – he says he realized “he made a mistake” by marrying the Respondent. On April 15, 2012 he moved into the garage of the matrimonial home. He says the two ceased sleeping together. The garage was renovated and furnished but he did still have to enter the home to use the washroom and kitchen. He described this period as awkward. Even though he continued to send her love letters and express his fond feelings for her, he says the relationship was not working and that there was no prospect it would.

[12] The Applicant then moved to his mother’s home on Hamilton Ave. in Brantford just before Christmas of 2012. He did so because he no longer wanted to have “one foot in the door and one foot out” and thought there needed to be a more complete break. He says he did this with no intention of ever moving back in with the Respondent.

[13] He detailed various attempts at reconciliation including in April of 2013 when the parties took a trip together to Las Vegas. They engaged in couples counselling from August 2013 until August 2014. He also took a lengthy trip to Scotland with Emma in August 2013. He says that during this period the Applicant engaged in two affairs which led him to draft and propose to her a separation agreement. He says he then made the decision to leave the relationship for good, which was a curious point to make given he had just got done telling me this decision was made when he moved in with his mother at or around Christmas 2012.

[14] I had some difficulty understanding the Applicant’s testimony. It was a bit confounding. For instance, in addition to his indication that on two separate occasions he decided the relationship was over for good he spoke about how, in August or the fall of 2014, he went back to live in the matrimonial home on Clench Ave. He described this as an attempt at reconciliation and as “a part of their counselling”. He then went on to immediately describe their mutual decision to get a fresh start in another community and to jointly purchase a home together. What’s peculiar is, this occurred in the winter of 2015 long after the relationship, according to him, was done. They did jointly purchase a home at 25 Barker St. in Tillsonburg. He testified it had all the “features each of them wanted”. The deal closed in August 2015.

[15] Then, while still insistent they separated once and for all in 2012, he talked about how he remained at his mother’s but “commuted between Tillsonburg and Brantford” occasionally staying overnight in the newly purchased home. He says this was a part of their continued attempt at reconciliation. He described it as them “doing it the right way” and not going in full bore. He then identifies a third date for their final split testifying about how in September 2015 he learned that the Respondent was engaging in a lifestyle he did not approve of and was holding herself out in public as single. This, according to him, was the last straw.

[16] He then testified about how it was not until December 2015 that he had had enough. This is when he confronted the Respondent about an affair he suspected she was having. At or around this time the Clench Ave. home sold. From December 2015 into 2016, he says the two had a plan for the Respondent to secure a place of her own. She ultimately did purchase a home on Pearl St. in Tillsonburg which is where she and Emma lived, while the Applicant moved into the jointly owned Barker St. home. He testified that during this time he was paying the bills for each of the Barker St. and Pearl St. residences and that he had assisted the Respondent in purchasing a vehicle. For this he applauds himself for “not abandoning the family”.

[17] Under cross-examination I learned that in 2014 he and the Respondent filed joint tax returns as spouses. He was also confronted with a series of cards and letters he penned to the Respondent wherein he expresses his love and devotion to her. He confirms that the two of them continued with counselling for a significant period of time; that they took a brief trip together in February 2015; and that in late March 2015 he purchased lingerie for her as a gift.

Respondent's Evidence

[18] The Respondent testified. She says the parties started residing together in April 2010. This coincides with a trip she took with him to San Francisco. There they together purchased a gift for Emma. The Applicant’s aunt Mary cared for the children while they were gone.

[19] She talked about the Applicant’s move into the garage at their Clench St. residence. She described it differently than the Applicant. She recalls him moving some of his belongings out to the garage primarily because he worked late while she typically retired for the evening at around 9pm. In other words, he did this so as to not disrupt her sleep. She says he slept on the couch and that the two continued to be physically intimate.

[20] She described the various trips they took together and the many letters and cards she received from him.

[21] The Respondent testified about the Applicant’s move to his mother’s home on Hamilton Ave. She says the two continued to see each other regularly and continued to be physically intimate. She concedes that he never returned to live at Clench full time but that they continued their attempts at reconciliation. She says it was because the Applicant was splitting his time at various places that the two decided to jointly purchase a home. She spoke at length about the counselling the two were engaged in together.

[22] The joint plan, and ultimate decision, to purchase the home at Barker St. was a part of their attempt at reconciliation. The Respondent describes this period as “good” and indicates that each of them were looking forward to the impending move which was going to represent a fresh start.

[23] She testified about an Anniversary card she received from the Applicant in April 2015. It was an expression of love, which she reciprocated. She said she still loved the Applicant and that she treasured the cards and notes she received from him.

[24] The Respondent denied any suggestion she was unfaithful. She recalled a text from the Applicant in January 2016 wherein he told her he had changed the locks to the Barker St. residence. He did not explain why he did this, and she did not understand why he would have done this.

[25] While she moved many of her belongings into the jointly purchased Barker St. home, she never actually moved in. She assisted the Applicant with preparing the Clench home for sale.

[26] Under cross-examination she testified that Pearl St. was intended to be but a temporary stop while the two continued to work on things. She says the Pearl St. purchase was necessary as the Clench sale was about to close, the Applicant needed somewhere to go (with the most logical place being Barker St.), and that the two were not quite ready to live together on a fulltime basis.

[27] For the three years or so the two were not living together fulltime, she insists that they were still working on their relationship and attempting to reconcile. In addition to counselling, she continued to cook him meals from time to time and they continued to be intimate.

[28] The Respondent’s daughter, Emma Sanderson, testified. She recalled her mother accompanying the Applicant to San Francisco in 2010. She was certain that the parties moved in together in April 2010. She was ten years old at the time and recalled specifically moving into the Clench Ave. home herself. She testified that her room was on the upper level while her mother and the Applicant shared a room on the main floor.

[29] Even though she calls him Bill, she has always considered the Applicant to be her step-dad. Her biological father’s last name is Blake – which she used until 2011 when she changed it to Sanderson.

[30] She recalled the Applicant’s move from Clench Ave. as gradual. There was no one specific event or big announcement. At first he just went to sleep in the garage, and then he moved some of his belongings to his mother’s home.

[31] As it relates to the parties final separation she recalled receiving a letter from the Applicant in January 2016 which said: “sorry things didn’t work out between your mom and I”. She was surprised by the letter as she understood they were working on their relationship. In fact, she was excited about their upcoming move into the Barker St. residence and the reunification of the family.

[32] She testified at length about the relationship she shared with the Applicant, which was close and loving.

[33] The Respondent’s daughter, Stephanie Goodhand, testified. She too believes the parties began cohabiting in April of 2010. She moved in with them shortly thereafter in December 2010. Before that she was living with her brother Luke at a condominium owned by the Respondent. She actually moved in with the Applicant’s mother on Hamilton Ave. as well. She said there was too much bickering and she needed a break. The Applicant and Stephanie never lived on Hamilton Ave. at the same time.

[34] Like Emma, she did not believe the parties were separated permanently until 2016 when she learned that they were not going to move in together on Barker St.

[35] I also heard from Molly Snider and Nancy Gowette. Ms. Snider was a co-worker of the Respondent’s. She recalls attending an event with the parties in November of 2015. The Respondent introduced the Applicant to her as her husband. She socialized with them throughout the evening and it was her impression they were a couple. They laughed, joked, danced, drank, and appeared to be enjoying each other’s company.

[36] Ms. Gowette is a real estate broker who assisted the parties in their search for a home. She showed the Barker St. property to them in the spring or summer of 2015. She believes that deal closed in August 2015. She recalled the Applicant introducing Emma as his daughter and it was her impression that the parties were a “normal married couple”. They did not tell her they were separated and nothing about their interaction led her to believe they were. The plan, as she understood it, was the Applicant was going to move in immediately and the Respondent would soon join him. The agreement of purchase and sale was entered into and signed by both parties.

Analysis and Findings

[37] The presenting issues are fairly straightforward. I can address the issue of cohabitation quickly. The Applicant effectively ignored this topic both in his evidence and submissions, and to the extent he addressed it in passing he was quite vague, other than to say they moved in together when they married. On the other hand, the Respondent and her two daughters gave cogent and detailed evidence about the circumstances surrounding her move into the Clench Ave. residence. Again, while offering little evidence of his own, his main attack upon the Respondent’s claim was to point out that initially her position was the date of cohabitation was October 10, 2010, later changing it to April 2010 in an attempt, he says, to purposely align it with their trip to San Francisco. This criticism is unfounded. The Respondent explained why she changed what she believed to be the date of cohabitation, which was confirmed by Emma, and to a lesser extent Stephanie.

[38] I find as a fact that the parties began cohabiting on April 10, 2010.

[39] That leaves the issue of separation. Section 5(1) of the Family Law Act provides that:

5(1) 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.

[40] The question is, at what point did the parties separate with no reasonable prospect that they would resume cohabitation?

[41] The Applicant appears to have conflated issues, essentially advancing reasons for why an unequal division is in order. For instance, in his closing he spoke about how he was “tapped out”, and “at the end of his tether”, referring, I think, to his ability to satisfy an equalization payment and support the Respondent, which has no bearing on the determination of relevant dates. The bigger problem is, even on his own evidence, the date of separation would have to be fixed at December 15th, 2015, a mere two months earlier than what the Respondent claims. He testified about their continuous attempts at reconciliation up until that point, including couples counselling, vacations together, and an otherwise shared life. He repeatedly expressed his love for the Respondent and jointly purchased a home with her. To find as the Applicant wants – that the date of separation was in 2012 – would fly in the face of all the evidence, including his.

[42] While people can live under the same roof and still be separated, people can sleep under different roofs and not be separated. It is a question of whether there was any reasonable prospect of cohabitation. On that point, the evidence is overwhelming. Both believed they could reconcile and made considerable effort to achieve it. Others observed their extensive attempts. And any objective person would have concluded, at the time, that there was real hope for them, despite their marital difficulties and notwithstanding the relationship’s ultimate demise.

[43] When there is ambiguity about the true date of separation, there are several factors I must look at. When did one or both of the parties express their intention to end the marriage once and for all? In this case, that did not happen, on each account, until either late 2015 or early 2016.

[44] When did the parties start to hold themselves out to others as separated? On the evidence before me this did not happen until early 2016. Yes, they were living in separate homes at times, but I find the evidence of Emma, Stephanie, and in particular the Respondent’s co-worker Molly Snider, to be determinative. Not only that, the joint purchase of a home was, in the circumstances, an affirmation of their union and efforts to keep it afloat. They held themselves out to the real estate agent as a married couple.

[45] When did sexual relations stop? The best evidence is it did not stop until early 2016.

[46] When did the parties physically separate, either by sleeping in different beds in the same home or residing in different homes? There is no doubt that this weighs in favour of the Applicant’s position. He did, for a period of time, sleep in the garage at Clench Ave., and there is no question he moved into his mother’s home.

[47] When did the parties stop attending social events together and cease eating meals together? For reasons I have already highlighted, it appears this did not stop at all until, what I find to be, their final separation in 2016.

[48] More than anything else, it is the attitude of fidelity and love each expressed to the other - that continued through 2015 – that leads me to conclude that the date of separation was indeed in early 2016. The Applicant contends that while he was expressing his feelings towards the Respondent she was not reciprocating, which, when combined with the toxic environment he says surrounded them, and despite their best efforts, there was in fact no reasonable prospect of cohabitation. I do not accept this. The Respondent testified that she felt the same way towards the Applicant and that, while she may not have reciprocated all of his cards and letters, her actions spoke loud and clear. She was, in her own way, expressing her true feelings for him. The reality is they both wanted to salvage the marriage, right up until early 2016, and each made considerable efforts to achieve that.

Conclusion

[49] In the result, I make these findings:

1. The parties began cohabiting on April 10, 2010.
2. They parties separated, with no reasonable prospect that they would resume cohabitation, on February 5, 2016.

[50] In the event the parties cannot agree on costs, I invite brief written submissions, not to exceed 3 pages in length (excluding a costs outline). The Respondent must file on or before July 31, 2019. The Applicant must file his response on or before August 9th, 2019. There is no right of reply.

[51] Several issues remain, that must either be resolved or set down for trial. I would ask Respondent counsel to ensure this file is brought back on track. I would recommend a further settlement conference where, with these reasons in hand, the parties may be in a better position to resolve their outstanding issues.

“Justice J.C. George” Justice J. C. George Released: July 10, 2019