INTRODUCTION AND BACKGROUND

[1] The applicant is 46 years old, born on July 30, 1972. She works at the March of Dimes. The respondent is 44 years old, born on October 15, 1974. He owns and operates a renovation company. The parties met in the mid 1990’s after immigrating with their families to Canada from Guyana. They commenced a relationship and were married in Toronto on July 30, 2004. There were no children of the marriage. The parties were divorced by Order of Mullins J. on February 28, 2017.

[2] This was a bifurcated, focused trial to deal with the issues of:

(a) The validity of the marriage that took place on July 30, 2004. The applicant claims the parties were validly married on July 30, 2004 in Toronto, Ontario. The respondent claims that the marriage was not valid.

(b) Whether the parties were “spouses” for the purpose of determining spousal support and equalization of property. The applicant claims that the parties began cohabiting in 2003 at 43 Grapevine Drive, Woodbridge (Grapevine residence). She further claims that they continued residing together after they were married on July 30, 2004 and later moved into 266 Twin Hills, Woodbridge (Twin Hills residence), where they lived together as spouses until they separated on June 1, 2011, with no chance of reconciliation. The respondent claims that the parties never lived together as spouses and therefore there is no separation or valuation date. If the court determines the parties were “spouses” and a valuation date is to be set, the respondent claims that August 2007 should be used because that is when he was charged with domestic assault.

(c) An extension of six years to the limitation period for the applicant’s equalization claim. The original Application was issued on March 5, 2014. If the valuation date is determined to be August 2007, the applicant claims that an extension to the limitation period should be granted pursuant to s. 2(8) of the [Family Law Act][^1] (FLA). The respondent denies this claim and says that the Application is subject to a limitation period pursuant to s. 7(3)(b) of the FLA. If the valuation date is determined to be June 1, 2011, the issue of granting an extension of the limitation period is moot.

(d) The respondent asks that the Application be dismissed and the Certificate of Pending Litigation on the property known municipally as 2632 Concession Road 4, Loretto, Ontario be vacated.

[3] In family law, the above questions are very important because entitlement and quantum of spousal support, as well as equalization of property, rests on whether or not the parties were in a spousal relationship and/or married and, if so, when it commenced and when it ended. Although the issue of the determination of the date of separation and valuation for the purposes of support and equalization arises in many family law matters, what is unique here, is the disagreement between the parties on the validity of their marriage and whether or not they were spouses as defined by s.1(1) the FLA. Here, the parties cannot agree as to the nature of their relationship, the dates of their cohabitation or their separation.

RESULT

[4] For the reasons set out below, I have made the following findings:

(a) The marriage of the parties on July 30, 2004 is and was valid.

(b) The parties were “spouses” for the purpose of determining spousal support and equalization of property. The parties cohabited prior to their marriage from September 2003 until they separated. The date of separation and the valuation date for the purpose of equalizing net family property is set at June 1, 2011.

(c) As the separation and valuation date is set at June 1, 2011, the issue of an extension to the limitation period is moot.

(d) The Certificate of Pending Litigation on the property known municipally as 2632 Concession Road 4, Loretto, Ontario shall remain registered until further order of the court or agreement of the parties.

Evidence and Analysis

[5] Generally, from the evidence I heard in this trial, I found the applicant to be a more credible and reliable witness than the respondent. I found that the respondent’s evidence was essentially unbelievable. As I address the above findings in the order set out above, I will review the more specific reasons why, based on all the evidence before me, I preferred the applicant’s evidence over that of the respondent.

The Marriage of the Parties on July 30, 2004 was Valid

[6] In her evidence, the applicant advised the court that the marriage took place on July 30, 2004 in Toronto, at 5100 Yonge Street at the North York Civic Centre. She produced six pieces of evidence to prove the validity of the marriage ceremony:

(a) An undated document entitled “Marriage Licence Requirements” from the City of Vaughan;[^2]

(b) A document entitled Record of Solemnization of Marriage, signed July 30, 2004, indicating the marriage ceremony took place in Toronto and contained both party’s names and addresses.[^3] This document is signed by the person who performed the marriage, being Rev. G. Fitzpatrick (the Reverend) and two witnesses being the applicant’s sister Simone Jhagroo (Simone), and the respondent’s friend Taijram Lauhar (Taj);

(c) A document entitled Marriage Certificate[^4] issued in the Province of Ontario with a Registration Number 2004-05-031466 and showing the same names of the parties, as well as the date and place of marriage as set out in Exhibit 2;

(d) Pictures taken during and after the marriage ceremony.[^5] In all the pictures, the applicant is in a white dress and the respondent in a dark suit and tie. One picture shows the parties standing and holding hands in front of the Reverend. One picture shows the respondent sitting at a table with the applicant standing beside him with her arm around him as he signs a document. Both parties are smiling and looking up at the camera. There is also a picture of the applicant and respondent standing close together alone and another of the applicant, respondent and Simone standing close together.

(e) A document, dated June 4, 2004, from Shelemay Jewellery Appraisals Ltd. regarding a men’s yellow gold wedding band.[^6]

(f) A document, dated July 30, 2004, entitled Marriage Office Receipt for payment showing the respondent’s signature at 11:59 a.m.[^7]

[7] The parties have two different versions of what happened on July 30, 2004.

Evidence of the Applicant

[8] The applicant advised the court that she and the respondent were living together at 43 Grapevine Drive, Woodbridge on the date of marriage in 2004. She said they had been in a dating relationship since 1994 and they had moved into the Grapevine residence together in 2003. She says that the respondent had given her a “promise ring” and other rings throughout their relationship. She said they had discussed marriage that she already thought of themselves as a couple since they were living together. On the morning of July 30, 2004 (which was her birthday) the respondent and applicant decided to get legally married. She says it was the respondent’s idea to get married on her birthday.

[9] The applicant said the parties attended the City of Vaughan Licensing Office at 2141 Major Mackenzie Drive on July 30, 2004 and they were given information about obtaining a marriage licence.[^8] They submitted an application for a marriage licence and it was issued that same day. According to the applicant, they were told that they had to go to another location for the ceremony. They chose to attend at the North York Civic Centre at 5100 Yonge Street. When they arrived there later that same morning, they were advised they needed an appointment and two witnesses for the marriage ceremony. They made the appointment for later that same day and the respondent paid for the marriage ceremony.[^9] They then called the applicant’s sister, Simone, and the respondent’s friend, Taj, to see if they could attend the ceremony later that day and be their witnesses. Simone and Taj both agreed to do so. The parties then took the afternoon and went shopping, purchasing a dress and a pair of shoes for the applicant. The parties picked up Simone at her residence later that afternoon and drove together to the North York Civic Centre. The respondent was driving. They met Taj outside and walked into the building together. They attended at the room or “chapel” and met the Reverend who explained and performed the marriage ceremony and they signed a document. They took pictures during and after the ceremony.[^10] Taj left on his own after the ceremony. The parties and Simone drove to pick up some food from a place called “Caribbean Heat”. The also picked up the applicant’s mother. They went back to the Grapevine residence and had a “celebration dinner.” Taj also attended and joined in the meal. Later that night the applicant and respondent drove Simone and the applicant’s mother home to their residence at 95 Deep Springs. Taj drove himself home.

[10] Simone testified that she received a call from the applicant and respondent while she was at work on July 30, 2004. They told her they were getting married later that day and asked her to be a witness. She agreed. They picked her up at her residence and went to the Centre. Her testimony matched the applicant’s in all essential elements.

Evidence of the Respondent

[11] In his evidence, the respondent admitted that he attended at the marriage ceremony and signed a document, however, his version of the relationship and marriage was very different from that of the applicant.

[12] The respondent told the court that he and the applicant were never more than sexual partners. He said that he woke up alone on the morning of July 30, 2004. He had plans to go to a party later that evening in Brampton. The Respondent said he went out around noon to a bar he regularly frequented called Caribbean Heat. He commenced drinking beer. His friend Taj met up with him there between 12:00 noon and 1:00 pm and they both continued drinking. Around 3:00 pm he answered a call on his cell phone from the applicant. He tried to wish her a “happy birthday”; however, she commenced an argument with him. She attended at Caribbean Heat and met him in the parking lot, where, according to him, he tried to give her $300 cash for her birthday. The applicant would not accept the money. She told him that she couldn’t continue what they were doing, (having sex without being married) because her mother didn’t approve. He advised the court that she was “nagging him.” He went on to say that the applicant told him that if they went to “sign a paper” showing they were married, she could show it to her mother and then they could continue their sexual relationship. He agreed to “sign the paper” and she left. He says that she advised him to meet her at the North York Civic Centre later that afternoon and she would, “take care of everything.” He returned to the bar and continued to drink. He asked his friend Taj to drive him to the North York Civic Centre and be a witness. He said he didn’t know exactly how many beers he had consumed by then, but it might have been around seven. Taj drove him to the North York Civic Centre where they met the applicant and Simone outside and then followed them into the building.

[13] The respondent admits that they met the Reverend and the Reverend told them about the marriage ceremony and said, “some things.” He admits that the applicant and respondent signed a paper. He says he was giggling and laughing through the entire ceremony. He admits that Simone and Taj signed as witnesses. He confirmed that it was his name on Exhibit 2 and his signature on Exhibit 61 and it was him in the pictures in Exhibit 4. He said that the whole thing took about “15 minutes.” He then advised the court that he and Taj left and went back to Caribbean Heat and starting “drinking hard.” Later that evening his brother Mark Anthony (Mark) picked them up because he was their designated driver. Mark took them the party in Brampton where they continued to drink. Mark did not drink at all. Mark drove them back to the Grapevine residence where they continued to drink and eat and then they went to sleep. According to the respondent, the applicant came to his house around 9:00 a.m. the next morning. She and Taj were laughing about the marriage ceremony that had taken place the day before. The respondent said they all thought it was a joke and he never thought of himself as married.

[14] The respondent’s friend and witness to the wedding (Taj) testified that he knew the ceremony was for a marriage. During direct examination, Taj’s memories and evidence of July 30, 2004 mirrored the respondent’s version of events. He said that on that day he arrived at the bar around 12:00 noon and started drinking with the respondent. He said that he later drove the respondent to the ceremony and signed as a witness for the marriage ceremony. He and the respondent then returned to Caribbean Heat to continue drinking. Later, the respondent’s brother picked them up and took them to a party in Brampton. Finally, according to Taj, Mark drove them all home to the respondent’s residence where all three of them drank alcohol together and ate and then went to sleep.

Formal and Essential Validity

[15] For a marriage to be valid there are two elements that must exist:

(a) “formal validity” relating to the procedure and rules in the place where the parties were married; and,

(b) “essential validity” relating to the capacity of the parties as determined by the laws where they were domiciled before marriage.

[16] The latter element is related to the “good faith” provision of s. 31 of the [Marriage Act][^11] which can save the formal validity of a marriage if the following four elements apply:

(a) The marriage must have been solemnized in good faith;

(b) The marriage must have been intended to be in compliance with the Marriage Act;

(d) The parties must have lived together and cohabited as a married couple after solemnization.

[17] With respect to formal and essential validity, the respondent testified that to his knowledge, he didn’t complete a marriage licence application. He pointed to an incomplete, unsigned marriage licence application[^12] as proof that no application was made and that there was no record showing the names and addresses of the persons to the intended marriage as required by ss. 4 and 13(11) of the Marriage Act. He also submitted that the form of the ceremony as provided for by s. 24(3) of the said Act was not complied with.[^13] The respondent further submitted that he was in fact under a legal disqualification to contract to marriage, namely a lack of capacity due to intoxication.[^14] This section states that,

No person shall issue a licence to or solemnize the marriage of any person who, based on what he or she knows or has reasonable grounds to believe, lacks mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason.

[18] The respondent relied on all of these reasons to declare the marriage formally invalid. The respondent further, “contends that in the circumstances, the marriage was void, illegal and of no effect and its validity cannot be saved by the deeming good faith provision of section 31 of the Marriage Act.”[^15] The respondent’s counsel Mr. Chatarpaul submitted that the marriage “was not solemnized in good faith owing primarily to the lack of notice, coordination or direct involvement of the Respondent in any of the aspects of planning the ceremony.”

[19] I found that, based on the evidence, the marriage fulfilled the required elements of formal validity. The parties obtained and completed a Marriage Licence and Record of Solemnization of Marriage on July 30, 2004 in Toronto, Ontario.[^16] As per s. 7 of the Marriage Act, this document would not have been issued if they did not complete the required application forms or if the respondent had presented as lacking “capacity to marry by reason of being under the influence of intoxicating liquor.” Section 7 also specifically bars any person from issuing:

…a licence to or solemnizing the marriage of any person who, based on what he or she knows of has reasonable grounds to believe, lacks mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason.

[20] The burden lies on the respondent to prove otherwise.

[21] When reading the Marriage Licence and Record of Solemnization of Marriage document,[^17] it is very clear that there are multiple parts to the document and there are clear instructions to the marriage licence issuer and the person solemnizing the marriage. Once parts 1, 2 and 3 are completed (and affirmed and signed) they are sent to the Office of the Registrar General. As the applicant stated in her testimony, the office kept the completed and signed application. The Bride and Groom keep part 4 and part 5 of the document which shows the names and addresses and the Record of Solemnization of Marriage.

[22] The parties were issued an Ontario Marriage Certificate.[^18] This would not have been issued if there had been any irregularity in the forms or marriage ceremony. The respondent took no steps after the marriage ceremony to annul the marriage or apply for a divorce.

[23] The parties and the courts should be able to rely upon a presumption of a form’s regularity when licences are issued by the government office in charge of same. Marriage licences are issued by the clerks of a municipality under s. 11 of the Marriage Act. The clerks, under s. 12, “require evidence to identify any applicant or to establish his or her status and may examine, under oath if required, any applicant or other person as to any matter pertaining to the issue of a licence.” Further, under s. 12(2),

…where an issuer has reason to believe that any information set out in an application for a licence is untrue, he or she shall not issue the licence unless on the production of such further evidence as the issuer may require, he or she is satisfied as to the truth of the information.

[24] The respondent provided no evidence from any official or expert to contradict the validity of the marriage licence or the marriage documents. The respondent proffered no evidence from the marriage licence office to support his story or that there had been any irregularity in the forms.

[25] As I have found that the marriage fulfilled all the elements of formal validity and was in compliance with the Marriage Act, it is unnecessary to address whether the elements of essential validity were met.[^19] I will, however, briefly address the “good faith” element of essential validity as some time was spent on this issue during the trial.

[26] Based on the evidence heard at trial, I found the marriage was solemnized in good faith by both the parties. I found the evidence and testimony of the respondent on the issue of whether the parties entered the marriage and solemnized it “in good faith” to be inconsistent and lacking credibility. He stated at times he knew the ceremony was for a marriage. Then at times during examination and cross-examination he back-peddled and said he was just signing “a paper.” He said he was at the bar, Caribbean Heat, around noon when he had started drinking and that his friend Taj met him there. He denied attending the marriage licencing office or making any arrangements for the marriage ceremony (and therefore he lacked intention). However, during cross-examination he confirmed his signature on the credit card receipt (Exhibit 61) that shows that on July 30, 2004 at 11:59 a.m. he signed the receipt for the payment for the marriage licence/ceremony at the marriage licencing office. On redirect examination, he back-peddled again and accused the applicant of forging his signature on the receipt.

[27] The respondent’s testimony actually showed very clearly that in fact he knew he was getting married. He said that the applicant had threatened to end their sexual relationship because her mother disapproved of it unless they were married. When he was testifying about the marriage ceremony, he became emotional. He loudly and dramatically stated that “I knew what I was doing” but “I made a mistake and I’m sorry.” During cross-examination the respondent further stated that he, “knew that when we were standing in front of that gentleman that we got married. We exchanged rings. I knew exactly what was going on.” I found the respondent’s feelings of regret to be self-serving. They did not reverse or invalidate the essential validity of the marriage, nor do they make the intent or consequences of it disappear.

[28] The respondent’s brother, Mark, did not attend the marriage; however, he testified about the details of this one particular night (July 30th, 2004) that occurred some 14 years ago. He said he had been the designated driver for the respondent and drove him and Taj to a party in Brampton. He said he did not drink so he had a good memory. However, under cross-examination, he could not recall what he was doing on July 29th, 2004 or July 31, 2004 (except that he woke up at the respondent’s house and left in the morning). There was no explanation provided as to why the night of July 30th, 2004 stood out so clearly for Mark when all he claims he did was drive the respondent and Taj to a party in Brampton and then home. Mark did provide some vague recollection of the respondent and Taj laughing about “a marriage,” but he apparently knew nothing more about it and didn’t inquire further, (which I found unbelievable considering this marriage involved his brother). I did not place a great deal of weight on Mark’s evidence.

[29] During Taj’s testimony, he stated clearly that Mark drank alcohol with him and the respondent when they returned home from the party in Brampton. This is a direct contradiction of both the respondent and Mark’s evidence because they both clearly said that Mark did not drink. Under cross-examination, Taj was further confused when confronted with the signed receipt,[^20] which showed that the respondent could not in fact have been at the bar drinking with him on that day at that time. Taj’s story began to unravel and he said he was not sure which day the marriage took place. He said, “I went to sign some marriage papers with the two of them. I can remember the event of the day. I can’t remember the exact date of the event.” He agreed that, “it is impossible to be signing at city hall and be at the bar drinking” with the respondent at the same time. I did not place a great deal of weight on Taj’s evidence. I found Taj’s evidence was inconsistent and unreliable. He even admitted that he did not remember the date of the event. Lastly, he admitted to the applicant’s counsel that his recollection may not be correct.

[30] I found the applicant’s evidence and the evidence of Simone, to be more believable than that of the respondent. The applicant’s evidence had an air of reality. The applicant clearly and calmly described the events of July 30, 2004 (which was her birthday) and how the respondent and applicant decided together and planned to get legally married. She said it was the respondent’s idea to get married on her birthday. She said that the respondent had given her a “promise ring” and other rings throughout their relationship. She said they had discussed marriage that she already thought of themselves as a couple since they were living together. She said they spent the day together organizing, planning and shopping for the ceremony. As already described above, the pictures of the marriage ceremony[^21] also support the applicant’s story. Simone’s testimony matched the applicant’s in all essential elements and was more realistic and believable than the respondent or his friend, Taj.

[31] I place a great deal of weight on the applicant’s evidence, as well as the wedding photos and the receipt from the marriage licence office. It has been said before, that “a picture says a thousand words.” It is the court’s opinion that the pictures provided in Exhibit 4 say it all. They show a young couple getting married in a simple civil ceremony. They are dressed neatly and appear clean. The applicant is in a white dress and the respondent is in a suit and tie. They are standing or sitting upright and holding their heads straight. Their faces are alert, (eyes are open) and their expressions appear serious and happy (smiles on their faces). Neither of them appear to be drowsy or intoxicated or laughing and giggling. Additionally, the receipt from the marriage licence office signed by the respondent at 11:59 a.m.[^22] was an important piece of evidence that contradicted the respondent’s story. The respondent admitted it was his signature under cross-examination. It was only when under re-direct examination that the respondent suddenly alleged that the applicant must have been in possession of his credit card and forged his signature to pay for the ceremony.

[32] Based on the evidence that was before me, I find the marriage that took place on July 30, 2004 was valid.

The parties were “spouses” for the purpose of determining spousal support and equalization of property. They cohabited prior to their marriage from September 2003 until they separated. The date of separation, and the valuation date for the purpose of equalizing net family property is set at June 1, 2011.

[33] Having found in this case that the parties were validly married on July 30, 2004, I find that the parties were spouses according to s. 1 of the Family Law Act. The next contentious issue or question for this court to determine is the valuation date. This is a two-part issue because in order to determine when spouses were separated at a point in time, it is of course first necessary to determine when they began cohabiting as spouses. McDermot J. described the problem very eloquently when this same issue arose in front of him in O’Brien v. O’Brien:[^23]

Often one of the most problematical issues in a matrimonial proceeding is when cohabitation began and when it ceased. Those dates are often a difficult target to hit, not only for the courts, but also for the parties. That is largely because cohabitation and separation are often the products of a sometimes lengthy process, one integrative, the other destructive. And often the parties themselves are unsure as to exactly when they began to live together, or when a relationship ended.

[34] The respondent testified that he and the applicant never lived together and that they were never in a serious or spousal relationship. He said that he never thought of her as his “wife.” He said they were intimate friends and sexual partners but they did not maintain a spousal relationship. He admitted that he called her his “wife” but he said this was because he “respects women” and he didn’t want to call her his “slut.” He said that calling her “wife” and/or “old lady” was a “biker thing.”

[35] The respondent called his friend, Taj, his brother, Mark, and his mother, Aklima Anthony (Aklima), as witnesses. They all testified that they did not see any evidence of the applicant and respondent residing together. Mark and Aklima further testified that they did not know of the applicant as the respondent’s wife.

[36] All three of these witnesses gave inconsistent and vague evidence about their knowledge of the applicant and the relationship between the parties. Taj told the court that when he attended at the respondent’s residence he did not go upstairs and he mostly remained in the garage, backyard or garden. He added very little information about his knowledge of the respondent and applicant’s relationship.

[37] Mark said he did not have a close relationship or association with the applicant. However, Mark somehow specifically remembered her birthday being July 30th. Mark and Aklima had a detailed memory about when the parties had met in the mid-1990s and knew that they were girlfriend and boyfriend at that time. However, they could not remember or did not know more recent details about the respondent being a “biker” or that the applicant and respondent travelled together and had continued their relationship until 2011.

[38] All three of these witnesses appeared surprised and confused when presented with a few pieces of the applicant’s evidence that contradicted the respondent’s story.[^24] Mark said that he had never seen the wedding pictures before. Neither Mark nor Aklima remember the respondent referring to the applicant as his “wife;” however, this was directly contradicted by the applicant’s rebuttal witness, Maria Zajaczkowska, the respondent’s ex-girlfriend (hereinafter referred to as “Maria Z”). Maria Z said that the respondent had told her he was married to the applicant - after Maria Z told him she was pregnant with his child. She also said that Aklima spoke very negatively about the applicant as the respondent’s wife.

[39] At one point in her testimony, when faced with some of the inconsistencies about the party’s relationship, Aklima became defensive and said, “I don’t know, he does not listen to me. He does things behind my back.” When asked about whether the respondent followed the Muslim faith, she said, “Not like me, he was a party guy, drinking with his friends and now he is a changed person. Not like he was before. He is mostly on the good side now. The bad things he did before like drinking etc. he doesn’t do it as much now.” Lastly, when faced with the evidence of the solemnization of the marriage and trips the parties took together, she said, “I don’t know about this. He would never tell me that because I warned him before. Kids don’t always speak the truth. I warned him. I don’t know his personal life. Sometimes I don’t know where he goes. I was working and I was busy.” When asked whether it was possible that the respondent could have been married without her knowledge, she answered, “Yes. How could it be possible to know every moment? Kids don’t tell us everything”. The mother clearly disapproved of the way her son had lived and the choices he made when he was younger. She also expressed significant disdain and anger towards the applicant, which I found surprising given that according to her testimony, she only had interactions with the applicant in the mid 1990’s – which was about 20 years ago. She had nothing but negative things to say about the applicant and her family.

[40] From the testimony of both the brother and mother, what was clear to me was that they either didn’t really know much about the respondent’s personal life or they had collaborated with the respondent regarding their testimony to support him in defeating the applicant’s claims. Either way, their evidence was inconsistent and lacked credibility.

[41] In Rosseter v. Rosseter, 2013 CarswellOnt 17606 (Ont. S.C.J.), Ellies, J. thoroughly canvassed the modern day principles that assist in the determination of when parties are cohabiting and when they have ceased to cohabit. This is done by examining several factors in the nature of the relationship including, but not limited to: whether the parties maintained a common residence or separate residences; whether there was financial support provided; whether the parties were sexually intimate; whether the parties maintained fidelity; whether they ate meals together and performed services for each other; whether they vacationed together; whether they attended social functions together; how the parties referred to each other in documents; whether the parties helped each other during difficult times; and, how the parties referred to each other in front of third parties.

[42] In this case, the applicant provided significant evidence in support of these factors to support my finding that the parties were spouses from September 2003 and they continued to live together after their marriage until they separated on June 1, 2011. Specifically:

(a) The parties maintained a common residence, mutually relied upon each other financially: they shared bills and received documents and bills at that residence. Both parties admit that the respondent paid the bills and that the applicant received her mail and some mutual mailings at both the Grapevine and Twin Hills residences.[^25]

(b) The respondent said that the parties maintained separate residences at all times and he relies upon the addresses and marital status on the applicant’s Canada Revenue Agency – Notices of Assessment from 2007 to 2011. Although this is a weakness in the applicant’s case, it is outweighed by the bulk of other documents and the evidence of the applicant.[^26] She explained that the respondent and his accountant told her to claim as “separated” to increase their GST/HST tax benefits. She admits that she now knows this was wrong. This admission does not outweigh the bulk of other evidence on the issue of the party’s cohabitation and spousal status.

(c) Both parties admitted they were sexually intimate with each other. There was no evidence presented that the applicant did not maintain fidelity to the respondent.

(d) The applicant stated that she cooked and cleaned for the respondent and helped him in his business. Her evidence was that they looked at each of the two homes together before the respondent purchased them. They picked out furniture together. She says that the respondent paid the bills. The respondent admitted to paying the applicant’s bills for many years.

(e) Both parties admitted that they intended to and attempted to have children together.[^27] The applicant spoke clearly about the couples attempt to conceive a child together because they were married and they wanted to have a family. When discussing the party’s attempts to have a child through in-vitro fertilization, the respondent minimized the relationship between the applicant and him and explained that he just wanted a child. He proudly admitted and estimated that he had paid “around $30,000.00” over the years, “2005 to 2010.” When asked why he would do this, he stated, “She wanted a child, and I gave her whatever she wanted. If she wanted the moon I would do anything for her.”

(f) By attempting to start a family together it showed that the party’s relationship was a relationship of permanency and not just a casual relationship.[^28] Additionally, in her evidence, the applicant discussed how stressful the fertility treatments were. With both of the parties participating in the treatments, and the respondent admitting to paying for the treatments, this showed that the respondent and applicant were helping each other out during a difficult time. Counsel for the applicant, Mr. Baijnath, pointed out that the respondent’s first son with Maria Z was born in 2010 (when the respondent was still attempting IVF with the applicant). The respondent did not deny this. Instead, he gratuitously shared irrelevant personal details about the applicant’s inability to have children. He further confirmed that Maria Z and the applicant did not know about each other or about his relationships with each of them.

(g) The applicant assumed the respondent’s last name. The respondent referred to the applicant as his wife and the applicant referred to the respondent as her husband. During cross-examination, counsel asked the respondent if he referred to the applicant as a wife. The respondent admitted that he did. He said that he called her “wife” and “my old lady” and explained it was a “biker thing.” Additionally, other family members referred to the parties as spouses both in person and in cards.[^29] Simone referred to the respondent as the applicant’s husband and her “brother-in-law”.

(h) Lastly, the evidence of the respondent’s ex-girlfriend, Maria Z, directly contradicted the respondent, and that of his mother and brother. She advised the court that the respondent himself told her he was married (after she told him she was pregnant). Further, after the applicant and respondent separated and the respondent and Maria Z reconciled, Maria Z began to meet his family and attend at the Twin Hills residence in the summer of 2011. She also saw pictures of the applicant. She said that respondent’s family spoke very negatively about the respondent’s ex-wife (the applicant).

(i) Both parties admitted they attended social gatherings together[^30] and vacationed together numerous times. Between 2004 and February 2011 they went on many holidays and trips together.[^31]

(j) The parties presented themselves as a couple and referred to each other as spouses in documents, such as the spousal consent on Twin Hills mortgage[^32], mortgage application[^33], many insurance documents and many government documents[^34].

[43] Based upon all of the above, I find that the parties were cohabiting as spouses on the date chosen by the applicant, being September, 2003.

[44] The next issue to determine is when they ceased cohabiting, (i.e. the separation and/or valuation date). The valuation date is defined in s. 4(1) of the Family Law Act as the “date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”

[45] The respondent submits that if a valuation date is to be selected, it should be 2007 after he and the applicant fought and he was charged with assault. The respondent gave varied and inconsistent testimony during discoveries and during the trial regarding cohabitation and the separation date. The contradictions and inconsistencies in his evidence on this issue meant that I could not give it a great deal of weight.

[46] Although the applicant admits that she moved out for a period of time after the assault, she said they never intended to separate on a final basis. The respondent expressed regret to her. He made promises to change, so she returned to live with the respondent after the charges were dropped and they continued to reside together until they separated on a final basis in 2011.

[47] As outlined above, the applicant’s evidence was supported by a vast amount of documentary evidence which supported her claims with respect to the dates of cohabitation and separation. With respect to the separation date, the applicant advised the court that after returning from a holiday with the respondent in Florida in early spring 2011,[^35] she saw the respondent’s Facebook post “Girlfriends wanted.”[^36] She said that their relationship had been deteriorating and this was the last straw. The applicant submitted that she packed up some of her belongings and she left the matrimonial home in June 2011. She subsequently consulted with a lawyer and commenced negotiations with the respondent.

[48] Unbeknownst to the applicant, the respondent had been having an affair with Maria Z which had already resulted in a child. The respondent and Maria Z both admitted that their relationship became more serious that summer of 2011, after the applicant left the matrimonial home.

[49] The applicant’s actions of leaving the matrimonial home in June 2011 and consulting with a lawyer regarding the separation are definitive actions. In addition, the respondent’s actions of commencing a more serious relationship with Maria Z the summer of 2011 was also a definitive action. These actions show the intention of a final separation of the parties and provide the degree of arbitrariness needed to determine the date of separation.[^37]

[50] I conclude that based on the evidence presented, the parties resided together as spouses and ultimately separated without a reasonable prospect of resuming cohabitation on the dates stated by the applicant, (being September 2003 through to June 1, 2011).

[51] For all the reasons stated above, I am satisfied that at no time prior to the applicant leaving the matrimonial home in June 2011 did the couple live as separated with no chance of reconciliation. Therefore, June 1, 2011 is set as the separation and valuation date.

As the separation and valuation date is set at June 1, 2011, the issue of an extension to the limitation period is moot.

[52] Having found that the separation date is June 1, 2011 there is no need to extend the limitation date for the applicant. However, if there was a need, it would be appropriate in these circumstances. It is clear in this matter that the applicant has satisfied the three factors as required by s. 2(8) of the Family Law Act.

The Certificate of Pending Litigation on the Property known municipally as 2632 Concession Road 4, Loretto, Ontario shall remain registered until further order of the court or agreement of the parties.

[53] The respondent sold the matrimonial home (Twin Hills) on August 17, 2012 without the applicant’s consent or informing her of same. He further completed the sale by making false statements about his marital status.[^38] It is important to preserve the assets of the marriage in order to equalize the net family property.[^39] Therefore the Certificate of Pending Litigation should remain registered to protect the applicant’s interest.

[54] As a result of the findings made above, I make the following Order:

(a) On or by February 15, 2019, the parties shall exchange complete, sworn Financial Statements (Form 13.1) with all supporting documentation and completed Net Family Property Statements using the above dates of cohabitation, (September 2003) and marriage, (July 30, 2004) and the separation and valuation date, (June 1, 2011). They shall also serve and file Certificates of Financial Disclosure.

(b) A combined settlement conference and trial scheduling conference shall be scheduled as soon as possible so that if the parties cannot settle the remaining support and property issues in this matter they shall be placed on the Spring 2019 trial list.

Pursuant to Rule 24, the applicant is presumed entitled to costs.

[55] As the applicant has been successful in this trial, the applicant is presumed entitled to costs. If counsel cannot agree on costs, I will receive written submissions on a 7-day turnaround, commencing February 9, 2019 with the applicant, followed by responding submissions, then reply submissions, if any. Cost submissions shall be no more than 5 pages in length (12 pt. font size, regular 1 inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my judicial assistant at BarrieJudSec@ontario.ca. If no submissions are received within 45 days from the date of this endorsement, the issue of costs will be deemed to have been settled between the parties.

[56] The applicant is also seeking security to be paid by the respondent prior to the commencement of any future proceedings. As I did not hear evidence on this issue, I cannot deal with this as part of my trial endorsement. It further was not agreed by the parties that I would consider this issue along with the costs of trial. I am not seized with

the subsequent part of this bifurcated trial or the issue of security for costs. Therefore, the applicant is free to bring a motion before any judge on the issue of security for future costs.

R.S. Jain J.

Released: January 28, 2019

[^1]: Family Law Act R.S.O. 1990, c. F.3. [^2]: Exhibit 1. [^3]: Exhibit 2. [^4]: Exhibit 3. [^5]: Exhibit 4. [^6]: Exhibit 5. [^7]: Exhibit 61. [^8]: Exhibit 1. [^9]: Exhibit 61. [^10]: Exhibit 4. [^11]: Marriage Act R.S.O. 1990, Chapter M.3. [^12]: Exhibit 47. [^13]: Section 24(3) of the Marriage Act deals with required declarations by the parties getting married and the person solemnizing the marriage. [^14]: Marriage Act s. 7. [^15]: Section 31 of the Marriage Act states that, “If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage is not authorized to solemnize marriage, and despite the absence of or any regularity or insufficiency in the publication of banns or the issue of the license.” [^16]: Exhibit 2. [^17]: Exhibit 2. [^18]: Exhibit 3. [^19]: Pursuant to s. 31 of the Marriage Act, there was no evidence that either of the parties were unable to legally enter into a marriage. Both parties were not related, they were over the age of majority, (the applicant was 32 years old and the respondent was 30 years old at the time); and both had never been legally married before. Also set out in my findings above, based on the evidence I heard in the trial, the parties cohabited as spouses after the solemnization. [^20]: Exhibit 61. [^21]: Exhibit 4. [^22]: Exhibit 61. [^23]: O’Brien v. O’Brien, 2013 ONSC 5750. [^24]: Exhibits 4 (marriage pictures) and Exhibit 10 (a Christmas card from the respondent to the applicant where he refers to her as his “wife”). [^25]: Exhibit 11 (b), 13, (a) (b) (c) (d) & (e), Exhibit 14, 15, 16, 18 (e) (f) & (g), 26, 34. [^26]: Morin v. Morin, 2011 ONSC 1727. [^27]: Exhibits 29, 30 (a) (b) (c) & (d) being various documents and invoices from both Isis Regional Fertility Centre and Astra Fertility Clinic. [^28]: Matthews v. Mutiso 2014 ONSC 4010. [^29]: Exhibits 10, 13 (a) (b) (d) (e) and 39 (a) (b) (c) (d) and (e). [^30]: Exhibit 6 (being a picture of the parties at a work Christmas party). [^31]: Exhibits 35 (a) (c) (d) (being various boarding tickets and passes and travel insurance referring to both parties as spouses). [^32]: Exhibit 8. [^33]: Exhibit 7 (where the respondent wrote that he was “married”). [^34]: Exhibit 11 (d) (e), 14, 18 (a) (g), 19. [^35]: Exhibit 35(a). [^36]: Exhibit 44. [^37]: Wolpin v. Wolpin, 2006 CarswellOnt 1711. [^38]: Exhibits 65 and 66 (Declaration and Transfer from the sale of Twin Hills where the respondent falsely declares himself to be “not a spouse.”). [^39]: Rule 42 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; and, the Family Law Act.

Anthony v. Anthony, 2019 ONSC 650

Case Summary

INTRODUCTION AND BACKGROUND

RESULT

Evidence and Analysis

The Marriage of the Parties on July 30, 2004 was Valid

Evidence of the Applicant

Evidence of the Respondent

Formal and Essential Validity

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

Legislation 3