Kenneth Duhaney v. Greta McLean-Duhaney

COURT FILE NO.: 41900/19

DATE: 2020-10-27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kenneth Duhaney, Applicant

AND:

Greta McLean-Duhaney, Respondent

BEFORE: Kurz J.

COUNSEL: Maurice Mattis, for the Applicant

Matthew Madott, for the Respondent

HEARD: October 19, 2020

ENDORSEMENT

[1] This is a motion by the Respondent wife, Greta McLean-Duhaney (“Greta”) for summary judgment, dismissing this application by the Applicant husband, Kenneth Duhaney (“Kenneth”), seeking an equalization payment, as statute barred.

[2] The key issue in both this motion and this application is the parties’ date of separation. While that may seem ordinary enough, what is unusual about this motion and this proceeding is that the two separation dates are roughly about twenty-nine years apart, coming in either 1986 and 2015.

[3] For the reasons set out below, I find that I cannot determine the issues raised in this motion based on the written record alone, even using my enhanced powers short of a mini-trial. However, I believe that I can determine whether there is a genuine issue requiring a trial through the process of hearing oral evidence in a proportional, time- limited manner. Accordingly, I order a mini-trial upon terms set out below.

Background

[4] The parties married on April 24, 1976. They had three children, Belinda, (now 51), Shane (now 43), and Latanya (now 40). They never divorced.

[5] In 1982, Kenneth brought a piece of Jamaican real property. He says that he did so in honour of his brother, who had died two years earlier. He has since travelled to Jamaica each year, for up to three months at a time, to tend to the property and spend time with friends and relatives. With one exception, there is no evidence that he has ever travelled with Greta or his children to Jamaica. The sole exception was a trip to Jamaica for the funeral of Kenneth’s mother in 2008. Greta says that she and the parties’ children attended the funeral because of her relationship with Kenneth’s sister.

[6] Greta says, without contradiction by Kenneth, that in addition to his annual trips to Jamaica, Kenneth regularly travelled to the United States, ostensibly for work. She adds that he never offered her any financial assistance during his travels. Kenneth does not deny the travel but insists that he always supported his family. He asserts that he consistently cashed in his pay cheques and gave Greta $500 per month in cash. However, he offers no independent evidence to support this assertion. That fact stands out in light of the fact that he claims that he and Greta continued to cohabit until September 18, 2015.

[7] The parties agree that theirs was an unusual relationship. Even in Kenneth’s telling, they did not live together all of the time that he says that they were together in a marital relationship. He frequently travelled for lengthy periods of time. Further, the state of their relationship fluctuated up and down throughout the twenty-nine-year period in dispute.

[8] Even for the period that Greta says that the parties were separated, their relationship was unusual. As Greta admits, it included Kenneth’s possession of a key to her home and his occasional multi-day stays at her home. Yet for the same period, during which Kenneth says that they were together, the evidence discloses a real distance and independence to the parties’ relationship. That distance and independence is particularly borne out in the evidence offered by two of the parties’ adult children.

[9] Greta stated at her questioning that sometime “about 1980”, that is between 1979 and 1981, she contracted a “disease” from Kenneth. Greta’s use of the vague term, “disease”, is a euphemistic label for a venereal disease. She stated in her questioning that Kenneth obtained the disease “because he was sleeping around”. She “didn’t know” about this behaviour. Greta added that Kenneth was “having children all over”. After they spoke about it, at a time that Kenneth was in the United States, he swore that he would change. She decided to forgive him. But, as she describes it, he did not change.

[10] Greta says that her forbearance ended in 1986. That year, she contracted cancer. She was quite ill and lost a great deal of weight. Kenneth was not around to support her in her hour of need. He was away for months. So she told him, she says, that the relationship was over.

[11] Since then, in Greta’s telling, Kenneth would come her home very occasionally, every few months. She would allow him into the home and even allow him to stay for a time. She went so far as to give him a key to her home. He slept in her basement or even on a rug. There were even occasions when he slept in her bed (he says that they had sexual relations, a claim that Greta adamantly denies). He claims that he left his clothes in her home. Greta asserts that he always came and went with his clothes in a suitcase.

[12] Greta explains that she allowed Kenneth into her home to allow him some contact with the children, as he was an absentee parent. However, it appears that the pattern of his stays in her home continued after the children reached adulthood.

[13] Greta states that she had the children make Father’s Day gifts for Kenneth. They often gave those gifts to her, not him, because they never knew when he would come by. She did not have the heart to tell them that their father was not around to accept their gifts.

[14] For his part, Kenneth asserts that until 2015, whatever his travels, he always lived with Greta and the children. He speaks of his role preparing food for the family and paying his share of the expenses by giving Greta $500 in cash per month. He states that he assumed the role of family chef because of his expertise in cooking Jamaican food (he worked for a time as a cook). Greta says that when he occasionally stayed over at her home, he did cook for himself and occasionally shared his food with the family. He also helped himself to her food, although she did not cook for him.

[15] While I will have more to say about their evidence below, both Shane and Latanya, the parties’ adult children, have provided affidavits. Those affidavits support Greta’s allegations and reject those of Kenneth.

[16] In 1989, Greta and the children moved into a home owned by her mother, located at 3209 McMaster Rd., Mississauga. Greta says that Kenneth did not live there. When Greta’s mother died in 2004, she took over sole title and the mortgage for the property. Kenneth makes no claim that he directly paid the expenses of this or Greta’s next home. He simply asserts that he paid Greta $500 per month in cash towards family expenses.

[17] Greta says that after she obtained title to the McMaster Rd. property, an itinerant Kenneth would occasionally show up, unannounced. She allowed him to sleep in various places in the home and gave him a key to the home, all to encourage him to visit the children.

[18] Kenneth denies this narrative, stating that he moved into the McMaster Rd. home with Greta and the children. He says that he was a full member of the household.

[19] Greta says that she received a call from an unknown woman in 1997, claiming that she was the mother of Kenneth’s child and wanted to know how to get hold of him. Greta hung up on the woman. She next spoke to Kenneth about three months later, when he called from Jamaica. When she confronted him about the woman claiming that he was the father of his child, his answer was “which one?” In his responding affidavit, Kenneth did not deny parenting any children with women other than Greta during the term of their marriage.

[20] From 1986 until 2004, Greta described herself in her tax returns as “separated”. In 2004, CRA wrote to the parties, requiring proof of their separation. Kenneth failed to respond. Greta says that she checked the CRA requirements for filing as a separated spouse. Because of Kenneth’s failure to respond to the CRA, she felt forced to begin describing herself as married because that was literally true (and remains so to this day).

[21] In 2005, Greta sold the McMaster Rd. property and purchased one, jointly with Latanya, at 333 Burl Oak Ave. in Oakville. Kenneth signed spousal consents with regard to both the McMaster Rd. sale and the mortgage required for the purchase of the Burl Oak Ave. property. Greta’s lawyer offered Kenneth whatever independent legal advice he received before he signed those two consents.

[22] Kenneth says that he rented a truck in 2005 to help Greta move from one property to the other. Greta denies that allegation. She asserts that she arranged for the truck and that her brother, brother-in law and nephews assisted her with the move. Neither party offers any outside evidence to support their contention.

[23] Kenneth states that shortly after Greta moved in to the Burl Oak Ave. property, he and a friend placed concrete on the driveway. Greta admits to this but says that Kenneth wanted to be paid for his troubles. I am unaware of any evidence demonstrating whether any payment was made.

[24] Kenneth’s friend, Emanuel Wedderburn, supplies an affidavit stating that he assisted in the cementing work on the Burl Oak Ave. property’s driveway. He says that he knows that Kenneth lived at that property for ten years because he picked him up at the property from time to time. He also said that Kenneth went to Jamaica on “short trips” to tend to his property but always returned to the Burl Oak Ave. property “because he is a family man”. Other than the reference to cementing the driveway and picking up Kenneth at the Burl Oak Ave. property, Mr. Wedderburn offers only conclusory statements of his knowledge of Kenneth’s residence at the property. I rely on his affidavit only to the extent that Mr. Wedderburn speaks of what he did and observed.

[25] In 2007 Greta, who worked at a bank, opened a joint banking account with Kenneth. She says that she did so at his behest, to save him the fees of both the cheque-cashing service Kenneth had been using and bank fees (which were waived because of Greta’s employment at the bank). Kenneth says that she took money out of the account, an allegation she denies. He fails to produce a single bank statement.

[26] Other than this account and Kenneth’s word, no evidence has been presented to the court of any money transfers between Kenneth to Greta, or any financial interdependence between the parties. Frankly, other than his word, there is no evidence that he did anything to support his children after 1986.

[27] In 2013, Greta gifted a 22-year-old BMW automobile to Kenneth. She had purchased it three years earlier, at auction. She explains that she had planned to give it to a charity because of its age and value. But since Kenneth was in need of transportation, she gave it to him instead. Kenneth argues that this is proof of their cohabitation. Greta argues the opposite: if they were living together as spouses, she would not need to give it to him. She would have allowed him to drive it as he pleased.

[28] In 2015, the parties engaged in a physical altercation at the Burl Oak Ave. property. Kenneth said that the altercation occurred on September 18, 2015. Greta said that it occurred in March of that year. Kenneth had received a $3,900 pension payment, which was deposited into the joint account. Kenneth felt that Greta had removed the money and confronted her about it. Greta, who denies taking his money, says that Kenneth punched her twice, in the face. Latanya, who was present, confirmed her mother’s account. Kenneth said that Latanya actually punched him, with Greta holding him back.

[29] After the altercation, Kenneth left the Burl Oak Ave. property, stating that Greta would hear from his lawyer. Kenneth’s counsel says that this is proof that the marriage ended that day as the altercation represented a “complete breach” in their relationship. Kenneth returned his key to the home and never returned to stay.

[30] Despite Kenneth’s parting words, there is no evidence that he did anything about this event for another four years, until he commenced this proceeding in 2019. In fact, Kenneth says that after this incident, he travelled to Jamaica for three months. Greta says that nothing changed after the fight (which she says occurred six months before he does). She adds that things returned to normal afterwards. It is hard to imagine that occurring if he had just punched her twice in the face.

[31] There is no objective evidence of the date of the incident (bank records could have assisted to show whether Greta removed $3,900 from the joint account and if so, when). There is no record of the police being called.

[32] Despite this rupture in the parties’ relationship, Kenneth continues to have mail his delivered to the Burl Oak Ave. property.

Law

Summary Judgment

[33] This motion is brought under r. 16 of the Family Law Rules ("FLR"). Under that rule, either party may bring a motion for summary judgment for a final order without the requirement of a trial. That motion can be brought on all or part of any claim made or defence presented in the case.

[34] The terms of r. 16(6) are mandatory: if there is no genuine issue requiring a trial of a claim or defence, the court shall grant judgment accordingly. (see also Hryniak v. Mauldin, 2014 SCC 7 ("Hryniak") at para. 68 and Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429 ("Mega International") at para. 83).

[35] There will be no genuine issue requiring a trial if the summary judgment process allows the court to reach a fair and just determination on the merits on a motion for summary judgment. That will be the case when the process (1) provides the court with the evidence required to fairly and justly adjudicate the dispute by making the necessary findings of fact, (2) allows the judge to apply the law to those facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. (Hryniak at paras. 49 and 66, see also paras. 44-45, 49-50 for the principles under which the court makes the determination of a genuine issue for trial).

[36] The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial (r. 16(4)). In response, the responding party may not rest on mere allegations or denials but shall set out in affidavit or other evidence, specific facts showing that there is a genuine issue for trial (r. 16(4.1)).

[37] In the oft-repeated maxim of Osborne J.A., the responding party to a motion for summary judgment must "lead trump or risk losing” (106150 Ontario Ltd. v. Ontario Jockey Club, 1995 1686 (ON CA), [1995] O.J. No. 132 (Ont.C.A.), at para. 35. That principle was reaffirmed in Ramdial v. Davis (Litigation Guardian of), 2015 ONCA 726, [2015] O.J. No. 5630 (O.C.A.) at para. 27, citing Papaschase Indian Band No. 136 v. Canada (A.G.), 2008 SCC 14, [2008] 1 S.C.R. 372, at para 11 supra, at para. 28).

[38] In other words, once the moving party discharges the burden of showing that there is no genuine issue requiring a trial, the onus shifts to the responding party. That party must then provide evidence of specific facts showing that there is a genuine issue requiring a trial (Ramdial v. Davis, at para. 30).

[39] A self-serving affidavit is not sufficient itself to create a genuine issue in the absence of detailed facts and supporting evidence. (r. 16(4.1) and Guarantee Co. of North America v. Gordon Capital Corp., 1999 664 (SCC), [1999] 3 S.C.R. 423, at para. 31).

[40] An adverse inference may be drawn from a failure to support the allegations or denials in a party's pleadings. (Pearson v. Poulin 2016 CarswellOnt 11368 at para. 40)

[41] On a motion for summary judgment, the court is entitled to assume that the record before it is complete, that it contains all of the evidence that a party would present if there were a trial. (Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438, at para. 8, citing Dawson v. Rexcraft Storage & Warehouse Inc., 1998 4831 (ON CA), 111 O.A.C. 201, at para. 17; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 27, 33-34, aff'd 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97; and Tim Ludwig Professional Corporation v. BDO Canada LLP, 2017 ONCA 292, at para. 54).

[42] In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties. But in addition, the court may use its expanded powers under subrule 16 (6.1), unless it is in the interest of justice to do so at trial. That subrule states:

Powers

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[43] Further, in exercising its expanded powers, the court may hear oral evidence presented by one or more of the parties, with or without time limits, in the form of a mini-trial (r. 16(6.2).

[44] As Paciocco J.A. wrote for the Ontario Court of Appeal at para. 83 of Mega International, those powers "...are presumptively available to a summary judgment motion judge to use to fairly and justly adjudicate a claim at a motion for summary judgment" (Hryniak, at para. 45). However, the court is not required to resort to those powers to make up for a party's evidentiary shortcomings (see Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438 at para. 8).

[45] At para. 5 of Hryniak, Karakatsanis J. called for summary judgment rules to be interpreted broadly, "... favouring proportionality and fair access to the affordable, timely and just adjudication of claims."

[46] A court being asked to consider partial summary judgment must also consider whether such a result is appropriate. As the Ontario Court of Appeal set out in Butera v. Chown, Cairns LLP, 2017 ONCA 783, at para. 38, the failure to consider whether partial summary judgment is appropriate in the context of the litigation as a whole is an extricable error in principle. The court must consider the issue within the context of the objectives of proportionality, efficiency, and cost effectiveness. It must, in particular, be careful about a process that would potentially lead to inconsistent results.

Test for Determining the Date of Separation

[47] The key to this motion is not simply the setting of a valuation date. It is the Respondent’s request that I dismiss Kenneth’s application for an equalization payment because of the passage of the applicable six-year limitation period.

[48] Under s. 7(3) of the Family Law Act (“FLA”), an application for an equalization payment may not be brought under s. 5(1) after the earliest of: (a) two years after the date the marriage is terminated by divorce or judgment of nullity; (b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; (c) six months after the first spouse’s death.

[49] The court has no discretion to vary the valuation date: Serra v. Serra, 2009 ONCA 105, at para. 41.

[50] Neither party has made reference to FLA s. 2(8), which allows the court, on motion, to extend a time prescribed by that statute if it is satisfied that (a) there are apparent grounds for relief; (b) relief is unavailable because of delay that has been incurred in good faith; and (c) no person will suffer substantial prejudice by reason of the delay.

[51] In determining whether it is appropriate to grant summary judgment in this case, it is important to consider the manner in which a court may determine a date of separation when the parties cannot agree. That determination is very much a fact-based exercise.

[52] The test for the date of separation, which is referred to as the “valuation date” in Part I of the FLA, dealing with family property and equalization, is found at s. 4(1). When there is no declaration of a nullity, successful application based on improvident depletion, or death of a spouse, that provision defines the term “valuation date”, as “the earliest of the following dates”:

1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation, [and]

2. the date the divorce is granted.”

[53] That definition is again applied in s. 5(1), which sets out a spouse’s right to an equalization of the parties’ net family properties.

[54] Since the parties have yet to divorce, the applicable test is the date that the spouses separate and there is no reasonable prospect that they will resume cohabitation.

[55] The leading case on the determination of a valuation date is the decision of Weiler J., as she then was, in Oswell v. Oswell, 1990 6747 (ON SC), [1990] O.J. No. 1117, 74 O.R. (2d) 15 (Ont. H.C.), aff’d (1992), 1992 7741 (ON CA), 12 O.R. (3d) 95 (Ont. C.A.). At para. 6, Weiler J. offers the following indicia of separation:

(1) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms: Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart.

(2) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium.

(3) The absence of sexual relations is not conclusive but is a factor to be considered.

(4) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.

(5) Although the performance of household tasks is also a factor, help may be hired for these tasks and greater weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.

7 … An additional consideration to which the court may have regard in determining the true intent of a spouse as opposed to that spouse's stated intentions is the method in which the spouse has filed income tax returns. …

[References to prior authorities omitted]

[56] In O’Brien v. O’Brien, 2013 ONSC 5750 McDermott J. considered how to determine a date of separation when the parties continued to live in the same home. He spoke at para. 52 of first looking for “an unequivocal act by the separating spouse indicating that there [sic] he or she wishes to separate without the possibility of reconciliation.” Absent such an unequivocal act, the court looks to “the way the parties subsequently live their lives” and whether it “will necessarily indicate whether one or both consider themselves to be living separate and apart” (para. 53). At that stage, the court looks to indicia of the nature set out in Oswell.

[57] In Neufeld v. Neufeld, 2019 ONSC 1277, Lococo J. reviewed a number of cases dealing with the indicia of separation where parties remained in the same home, including O’Brien. In that case there was a 14-year gap between the parties’ purported separation dates. At para. 66, Lococo J. stated that “courts have often declined to find that spouses who continued to [sic] living under the same roof were separated until the occurrence of a defining ‘event of separation’ that clearly indicates that the parties are separated.”

[58] Yet in other cases, the court was able to make that finding on the facts. One example was Parsalidis v. Parsalidis, 2012 ONSC 2963, cited in Neufeld, at para. 67. There, one spouse lived in a self-contained part of the house, rarely accompanied the other spouse to family events, and made very limited contributions to family finances

[59] In Neufeld, Lococo J. concluded on the point that “[a]s a general observation, previous decisions relating to whether parties living under the same roof are separated assist in indicating a general approach to determining that issue, but the facts of any particular case are not necessarily of critical importance.” In other words, these cases are fact specific and the facts of one previous decision do not necessarily bind the court in subsequent one.

Is this Case an Appropriate one for Summary Judgement?

[60] Each party points to reasons the court should find that their valuation date is the correct one.

[61] Greta’s evidence points to both an absence of evidence by Kenneth and her own corroborating evidence. In particular, she relies on:

a. The strongest independent evidence, that of her children. They are unequivocal that their father did not live with them and was basically not around and a part of their lives growing up.

b. The lack of objective evidence that Kenneth regularly lived with her after 1986;

c. The lack of independent evidence of any financial interdependence between the parties after 1986;

d. Kenneth’s admission that he spent up to a quarter of each year in Jamaica. The only evidence that she and the parties’ children joined him there was the single occasion of the funeral of Kenneth’s mother in 2008. Even then, she explains that she came because of her relationship with Kenneth’s sister.

e. The fact that for twenty years, from 1986 until 2006, Greta described herself in her tax returns as separated. She only changed the designation when the CRA demanded proof of their separation, proof she could not provide in the absence of a response by Kenneth.

f. The fact that she went to the trouble of giving the relatively worthless 22-year-old BMW to Kenneth rather than just letting him drive it actually points to their separation rather than their continuing cohabitation.

g. The fact that Kenneth still uses her address for his mail shows how that the 2015 incident was not the unequivocal act that Kenneth makes it out to be.

[62] For his part, Kenneth points to and relies upon the following evidence:

a. He signed at least two spousal consents to her real estate transactions.

b. Greta gave him the key to the two real properties in which she had an interest.

c. The parties shared a joint bank account, opened by Greta.

d. Greta admitted that Kenneth slept over at her last two homes, even that they occasionally, albeit platonically, shared a bed (which he claims to be an understatement of both quantity and degree).

e. The affidavit of his friend, Emanuel Wedderburn, regarding their paving the driveway of the Burl Oak Ave. property and picking him up at that property from time to time.

f. The fact that Greta filed tax returns as married after 2004.

[63] The factors set out above show that each party raises factors that the court must consider. However there is no conclusive evidence. The issue may ultimately depend on findings of credibility. For that reason, I do not feel that I can decide the issues of a valuation date or the dismissal of this application based on a limitation defence on the written record (including the transcript of Greta’s questioning) alone.

[64] I have considered whether the use of my enhanced powers, short of a mini-trial, would allow me to make a fair and just adjudication of the dispute by making the necessary findings of fact. I do not find that it could. The issues of credibility require a further hearing.

[65] I will likely be able to make such a determination in the context of a time-limited oral hearing during a mini-trial before me. There, I will be able to observe the cross-examination of the parties and receive any further documentation cited in this decision that has yet to be produced.

[66] In particular, while I have a transcript of the questioning of the Respondent, the Applicant has not been quested to date. I also believe that the court will benefit from the oral cross-examination of the collateral witnesses who provided affidavits: the parties’ adult children, Shane and Latanya, as well as Emanuel Wedderburn.

[67] The affidavits filed this far shall be the evidence in chief of each party. No further affidavit evidence will be filed without my leave.

[68] I wish all of the evidence to be provided in an efficient and time-limited manner. The hearing will be a brief “stop-watch” trial, with specific times allocated for each aspect of the hearing. The process should take no more than two days.

[69] Counsel will consult with each other to see whether they can reach agreement on the method of proceeding within the general guidelines set out above. After that discussion, they shall endeavor to create a joint trial scheduling endorsement form, setting out the areas of their agreement on the details of the mini-trial. Thereafter, they shall file that form and arrange a further conference with me to make the final arrangements.

[70] Costs of this motion are reserved to the completion of the mini-trial.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Original will be placed in court file

Date: October 27, 2020