COURT FILE NO.: FS-19-13143

DATE: 2020-11-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Melissa Hart

Applicant

– and –

Kevin Fullarton

Respondent

Self-represented

Steven Benmor and Misha Leslie, for the Respondent

HEARD: October 29, 2020

E.L. Nakonechny, J.

REASONS FOR JUDGMENT

[1] The Applicant, Melissa Hart, seeks retroactive and ongoing spousal support from the Respondent, Kevin Fullarton, under Part III of the Family Law Act.

[2] The Applicant’s Application issued October 15, 2019, also contained a claim for an interest in the property known municipally as Unit 502-245 Dalesford Road, Toronto, owned solely by the Respondent. The Applicant withdrew this claim at the commencement of trial.

[3] The Respondent asks that the Applicant’s claim for spousal support be dismissed, for a finding that the Applicant is a vexatious litigant and an order that the Applicant shall not bring any further proceedings against the Respondent.

The Respondent’s Preliminary Motion

[4] At the outset of the trial, the Respondent brought a motion for an order initializing the names of the parties in this proceeding. The Applicant consented to the motion.

[5] An order initializing the names of parties to a proceeding is a restriction on the open court principle which is fundamental to the Canadian justice system and protected by s.2(b) of the Canadian Charter of Rights and Freedoms: Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332. Regardless of the Applicant’s consent, I must still determine whether the Respondent has met the test for an order initializing the parties’ names.

[6] In Dagenais v. Canadian Broadcasting Corp., 1994 SCC 39, [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 the Supreme Court of Canada set out a two part test to be applied where a court is asked to order that public access to a court file be limited or restricted. Because of the importance of the open court principle in the common law and our democratic society, the test for restricting public access to judicial proceedings is a stringent one. The party seeking an order restricting access to the file must establish that:

1. The order is necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and,

2. The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

[7] The Respondent argues that the parties’ identities should be protected because there is a risk of harm to the safety and security of future children or family members of both parties if they were to learn the details of this case.

[8] The Applicant is 41 years old. The Respondent is 63 years old. There is no evidence before the Court that either party has children or that a serious risk of emotional or other harm would result if any of their respective adult family members were to discover the existence and facts of this case.

[9] The Respondent may be embarrassed and not want the details of his private life to be part of the public court record, but this is not sufficient to justify limiting the open court principle. “A litigant’s personal interest in keeping certain litigation details private cannot establish the “necessity” branch of the Dagenais/Mentuck test. Rather, the jeopardized interest must have a public component…there must be convincing evidence of harm to the administration of justice.”: L.C.F. v. G.F. 2016 ONSC 6732 at paras. 32, 36 and 37.

[10] I find that the Respondent has not met the test in Dagenais/Mentuck. The motion for an order initializing the names of the parties is dismissed.

The Issues at Trial

[11] The first issue I must determine is whether the Applicant is a “spouse” as defined in Part III of the Family Law Act. If she is not a spouse, she cannot claim spousal support from the Respondent.

[12] If the Applicant is a spouse, I must then determine the issues of entitlement to and quantum and duration of spousal support.

Background

[13] The parties met in 2007. The Applicant was 28 years old and the Respondent was 50 years old. At the time, the Applicant was in a relationship and the Respondent was married. The parties began a relationship.

[14] The Respondent and his wife subsequently separated. In 2008, the Respondent purchased and moved into the property known municipally as Unit 502-245 Dalesford Road. The parties continued their relationship and communicated from time to time.

[15] The parties both resided at Dalesford Road from about November, 2010 to November 21, 2017. The parties’ relationship ended on November 21, 2017.

The Applicant’s Position

[16] The Applicant states that she and the Respondent began cohabiting in a conjugal relationship in February, 2011 when she moved into Dalesford Road. She was initially concerned about committing to a live in relationship but says the Respondent persuaded her to stay.

[17] The Applicant was not employed from 2011 to 2014. The Applicant states that she obtained employment in 2014 as a finance manager with a Hyundai dealership in Milton. The Respondent told her she should look for part time employment or something closer to their home, so she did not take that job.

[18] The Applicant states that she was financially dependant on the Respondent. He paid for all of the housing, transportation, recreation and entertainment costs. The Applicant was a homemaker and used her savings and line of credit to contribute to living expenses.

[19] The Applicant states that she and the Respondent were known to the community as spouses. They participated in activities in their neighbourhood, ran household errands, did grocery shopping and spent holiday time together as a couple.

[20] The Applicant admits that the parties did not attend events as a couple with their respective extended families or at the Respondent’s workplace. The parties did not attend holiday dinners or events with other’s family. The Applicant did not attend the Respondent’s brother’s retirement dinner; his nieces’ graduations or weddings or his office holiday parties and events. In 2016, the Respondent received an important community award for volunteerism from the Mayor of Toronto. The Applicant did not attend that event.

[21] The Applicant believed that the Respondent had other intimate relationships while they resided together. She also acknowledged that the relationship was “difficult” and “coming to an end” in the period prior to the separation.

[22] In September, 2017, the Applicant began working full time at a car dealership. On November 21 the Respondent drove her to work. At the end of the day the Respondent texted her to say he was running late in picking her up.

[23] Forty minutes later, the Applicant received an email from the Respondent which stated that the locks at Dalesford Road had been changed and that the Applicant was no longer a “welcome guest” in the Respondent’s home. He had packed her personal belongings and placed them in a hotel room nearby which was paid for four nights. The Respondent left a $1200 pre-paid credit card for the Applicant’s use and advised he would e-transfer an additional $1300 to her directly.

[24] The Applicant returned to Dalesford Road that evening and tried to enter the home. She knew the Respondent was inside. The police attended and the Applicant was arrested. She was released the following day on a recognizance which prevented her from having any direct or indirect contact with the Respondent except through family law proceedings.

[25] The Applicant states she was compelled to resign from her employment at the car dealership. She required additional time off to deal with the criminal charges which the employer would not provide as she was still on probation.

[26] On September 19, 2019 the Applicant was convicted and found guilty of assault against the Respondent. On October 1, 2019, the Applicant was convicted and found guilty of nine counts of Failing to Comply with the terms of her recognizance. She is subject to a two year probation and ordered to have no contact with the Respondent.

[27] The Applicant has not been employed since November, 2017. She resides with family in Hamilton.

[28] The Applicant states that she attempted to resolve the issues arising from the parties’ relationship with the Respondent through counsel, but this was not successful. She commenced this proceeding on October 19, 2019.

[29] The Applicant argues that the parties were spouses and cohabited in a conjugal relationship for about six years. She suffered economic detriment as a result of the relationship and its breakdown because her role as a homemaker prevented her from furthering her education or returning to the workforce.

[30] The Applicant suffered distress as a result of her arrest and the criminal proceedings which followed. She did not provide any medical evidence of her inability to return to the workforce. She did not provide any evidence of her efforts to retrain or apply for employment since November, 2017.

[31] The Applicant states that she was financially dependant on the Respondent during their relationship. The Respondent has the ability to pay support and should do so retroactive to the date of separation.

The Respondent’s Position

[32] The Respondent’s version of the relationship is markedly different from the Applicant’s version. He denies that the parties were spouses or that they lived in a conjugal relationship.

[33] The Respondent states that between 2008 and 2010, the parties occasionally met in person and talked on the phone, usually when the Applicant needed money. The Respondent acknowledges that he loaned her money from time to time at her request.

[34] The Respondent denies he invited the Applicant to move in with him. He states that she “showed up” on his doorstep with her belongings in November, 2010 saying she had no place else to go. She and her mother had been evicted from their home due to mortgage foreclosure. The Respondent offered the Applicant his couch as a temporary measure.

[35] Once in the home, the Applicant refused to leave. The Respondent repeatedly asked her to move out, but she would not. She continued to demand money from the Respondent. The Applicant said that she did not want to be in the home with him but made no effort to find other accommodation.

[36] The Respondent concedes that the parties had a sexual relationship until 2011. Thereafter, he says they were not intimate. They slept separately, one of them in the bed and one on the couch.

[37] The Respondent paid for all of the carrying costs of the home, but he did not pay for any of the Applicant’s personal expenses such as her clothing, cell phone, Visa, or other expenses. He states that the Applicant was employed at five different car dealerships during the period 2014 to 2017. She paid for her own personal expenses. She did not contribute to the utilities or other common expenses of the home.

[38] The Respondent states that the parties did not regularly eat meals together in or outside of the home, shop for groceries, cook, travel, spend holiday time, give gifts, or participate in community or other activities as a couple. They were not known to each other’s friends, workmates or extended family as a couple.

[39] The Respondent states that the parties lived separate lives and had minimal interaction with one another. The Respondent worked long hours and sometimes on weekends. He left home early in the morning and arrived back after 7 p.m. most evenings. He would sometimes pick up food for himself on the way home.

[40] The Respondent admits that the parties occasionally spent time together, such as shopping for an appliance, attending a yoga class and riding bicycles. These were isolated times and not a result of the parties arranging to spend time together.

[41] In 2012, the Applicant’s behaviour became hostile and violent. She continued to demand money from him. She physically assaulted the Respondent and caused damage to his home. The Applicant threatened the Respondent at home and at his workplace. She sent aggressive notes to the home of his ex-spouse.

[42] The situation escalated. The Respondent became fearful for his personal safety. He was sometimes woken up in the middle of the night by the Applicant yelling, striking and scratching him. Some nights he was forced out of the home and fled to the parking garage where he would sleep in his storage locker.

[43] The Respondent took photographs of the injuries inflicted by the Applicant after she attacked him. He hid the injuries from his friends and family members. He tried to convince the Applicant to leave his home, but she would not do so. He was too embarrassed and ashamed to call the police.

[44] In 2017, the Respondent sought legal assistance. He put an “escape plan” in place which he executed on November 21, 2019. He sent the email dated November 21, 2017 to the Applicant at 5:38 p.m. asking the Applicant not to return to his home and telling her that he had moved her belongings to a hotel and was providing her with some financial assistance.

[45] The Applicant returned to the home that evening and tried to open the door. When her key would not work, she became aggressive and tried to force the lock. The Respondent barricaded the door with a large piece of furniture and called the police. He made a statement to the police and gave them photographs of his injuries. This resulted in the criminal charges against the Applicant.

[46] Essentially, the Respondent’s position is that the Applicant was an “unwelcome visitor” in his home who would not leave unless he paid her a large amount of money, which he refused to do. When he would not pay her, she attacked him physically. He lived in a state of fear. He was forced to devise a ruse to evict her from his home. Thereafter, he was a compelled to be a witness in two criminal court proceedings and this domestic litigation. He calls the events a “nightmare”.

Credibility of the parties

[47] This trial proceeded on affidavit evidence in chief with viva voce reply evidence and time limited cross examination. The issues of credibility and the reliability of the parties’ testimony is relevant because the parties’ versions of the events during their relationship is so divergent. Other than the dates they resided together in the home and the fact that the Respondent paid for the carrying costs of the home, the parties disagree on most other aspects of their relationship.

[48] The Applicant could have called family members, friends or neighbours as witnesses to give independent evidence regarding the parties’ relationship. She could have provided documentary evidence to help prove her case. She did not do so.

[49] Both parties had some issues of credibility during the trial. However, I had more difficulty accepting the Applicant’s testimony and found her evidence to be less reliable.

[50] The Applicant made bald statements that lacked specifics and detail. She provided no other evidence through witnesses, documents, photographs, written or text communication to corroborate her testimony.

[51] As examples, the Applicant alleged that in the first three years of the relationship she contributed to the housing expenses at Dalesford Road. She provided no evidence of this through her own bank statements, cheques or other documents. In cross examination she conceded that during this period she was not employed, had only minimal savings and access to a small line of credit. None of those documents were in evidence.

[52] The Applicant alleged that the Respondent was aggressive toward her during the relationship. She provided no evidence from a third party or a doctor to support this allegation. While this is not a determining factor, she also did not communicate any allegations of domestic violence to the police when she was arrested for assault in November, 2017 or during the two criminal proceedings against her, including the sentencing hearings. The Applicant also continued to contact the Respondent numerous times after November 21, 2017, in breach of her recognizance.

[53] The Applicant alleges that the parties participated in activities in their neighbourhood and were known as a couple to others, including her mother. She did not call any third parties to corroborate this.

[54] Despite these problems with her testimony, the Applicant was responsive to questions and direct with her answers. Unfortunately, hers is the only evidence of her version of events.

[55] The Respondent was measured in his testimony despite the fact he was clearly upset by the circumstances of his situation. His evidence was consistent with the evidence he gave in the criminal proceedings relating to the same events. His credibility was not undermined by cross examination.

[56] The Respondent’s email to the Applicant dated November 21, 2017, written at the time of the events of the separation is telling and probative of the nature of the parties’ relationship: MacMillan-Dekker v. Dekker (2000), 2000 ONSC 22428, 10 R.F.L. (5th) 352 (Ont. S.C.J.) at p. 22.

[57] For these reasons, where there is conflict between the testimony of the parties, I accept the Respondent’s evidence over the Applicant’s evidence.

Law and Analysis

Were the parties spouses?

[58] Section III of the Family Law Act, R.S.O. 1990, c. F.3 reads:

29. In this Part,

… “spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited, (a) continuously for a period of not less than three years….

[59] Section 1(1) of the FLA defines “cohabit” as “to live together in a conjugal relationship, whether within or outside marriage”.

[60] The Applicant and the Respondent resided in Dalesford Road for six or seven years, from November, 2010 to November 2017. I must decide whether they lived together in a conjugal relationship.

[61] Molodowich v. Penttinen (1980), 1980 ONSC 1537, 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), is the leading case which sets out the criteria the Court must consider when determining whether a conjugal relationship exists. These criteria continue to be adopted and followed in numerous recent cases. The criteria include: shared shelter, sexual and personal behaviour, services, social activities, economic support, children, and the societal perception of the couple.

[62] In M. v. H, 1999 SCC 686, [1999] 2 S.C.R. 3, the Supreme Court of Canada adopts and affirms the criteria and the contextual and flexible definition of “conjugal” set out in Molodowich. M. v. H. determined the right of same-sex couples to be identified as common law spouses under s. 29 of the FLA. The Supreme Court held that that the elements of a conjugal relationship will exist in different degrees in different relationships, and the weight to be accorded to each of the elements will vary widely depending on the facts of the relationship. Not all of the elements are necessary to find the relationship is conjugal. The Court’s approach to determining whether the relationship is conjugal must be flexible: at paras. 59-60.

[63] In this case, the onus is on the Applicant to prove that the parties lived together in a conjugal relationship. If they did not, they are not spouses as defined in ss. 1(1) and 29 of the FLA and the Applicant has no right to claim spousal support from the Respondent.

[64] The case law on this issue confirms that each case is fact specific and each relationship is different on its facts. To determine whether the parties lived together in a conjugal relationship, the facts of the relationship must be applied to the relevant factors in Molodowich and considered in conjunction with one another: Climans v. Latner, 2019 ONSC 1311 para. 128, aff’d 2020 ONCA 554; Quesnel v. Erickson, 2012 ONSC 4335 at para. 99.

[65] In Derakhshan v. Narula, 2018 ONSC 537, aff’d 2019 ONCA 742, Sheard, J. reviewed the evidence of the parties’ relationship and concluded that they were not in a spousal or common law relationship. Sheard, J. held that there was no evidence of any express intention by either of them to enter a long term relationship. The parties did not hold themselves out socially as spouses. Their finances were kept entirely separate. They had travelled together to India but otherwise travelled separately.

[66] The Applicant has not provided sufficient evidence of the parties’ relationship necessary to prove the elements/criteria set out in Molodowich. There was no corroboration of the Applicant’s assertion that the parties were in a conjugal or even a romantic relationship. Applying the contextual and flexible definition as instructed by M. v. H., and weighing the entirety of the evidence, I am not persuaded the relationship between the Applicant and the Respondent was a conjugal relationship:

1. Although the parties resided in the same home from 2010 to 2017, they did not have sexual relations, intimacy or sleep in the same bed after 2011. The Respondent sometimes fled the home to sleep in the storage unit when the Applicant was violent toward him.

2. The parties had no joint bank accounts. They were not named as beneficiaries of the other’s life insurance, investments, employee health benefits or Wills. There are no documents where the parties name one another as their common law spouse or indicate they are in a common law relationship.

3. There is no evidence the parties treated each other as spouses. The Applicant did not provide proof of any words or actions between the parties which would confirm a spousal relationship and their fidelity to one another. No emails, text messages, photographs, birthday or anniversary cards or other documents were produced to show their love and commitment.

4. The parties did not share domestic chores or services within the home to benefit one another. They lived and ate separately in the home. The Respondent paid the expenses of the home because he owned the home. The Respondent did not pay any of the Applicant’s personal expenses.

5. The parties did not hold themselves out to others as a committed couple. They were not known as a couple to their family and friends. The parties did not participate in social activities with others as a couple save for a few yoga classes. They did not attend events with each other’s extended family such as holidays, weddings, and special occasions. There is no evidence that either party’s extended family even knew about the other party. They did not attend work or community events together.

6. There is no evidence the parties travelled or spent any holiday time together.

[67] In my view, the parties were not cohabiting in a conjugal relationship. They are not spouses. The Applicant has no claim for spousal support against the Respondent.

Is the Applicant a vexatious litigant?

[68] The Respondent has produced examples of other litigation commenced by the Applicant which he states shows her abuse of the legal system.

[69] The Applicant was convicted of an impaired driving offence in 2014. She appealed her summary conviction to the Ontario Superior Court of Justice and then sought leave to appeal to the Court of Appeal. Both the appeal and the motion for leave to appeal were dismissed.

[70] The Applicant brought a claim for damages, including compensatory, aggravated, and punitive damages, in the amount of $4.5m against an individual who had obtained a judgment against the Applicant for unpaid rent. The individual had placed a lien on a property owned by the Applicant. The Applicant claimed this resulted in the sale of the home.

[71] On a motion for summary judgment brought by the individual as defendant, Allen, J., dismissed the Applicant’s claim on the ground it was statute barred. Allen, J. found that the Applicant’s home was sold under power of sale due to her default on the mortgage, not the actions of the individual.

[72] The Applicant brought a claim for damages against the mortgage company who had obtained a judgment against the Applicant and her mother for non-payment of its mortgage. The mortgage company sold the home in partial satisfaction of the judgment. Glustein, J. dismissed the Applicant’s claim and found that it was frivolous and vexatious.

[73] One month later, the Applicant brought a second claim against the mortgage company seeking essentially the same relief. This claim was also dismissed by Glustein, J. on the basis that it was an attempt to re-litigate His Honour’s prior decision.

[74] In this proceeding the Applicant made three attempts to bring an urgent motion and one attempt to bring an urgent case conference between March and June, 2020. Regular court operations were suspended during that time due to COVD-19. Based on the Applicant’s materials filed, Hood, J., Shore, J. and Diamond, J. all held that the matter did not meet the test for urgency set out in the Chief Justice’s Notices to the Profession, Public and the Media and did not permit the matter to proceed on an urgent basis.

[75] The Respondent argues that the Applicant is unrelenting and has persistently brought claims that are unfounded and without merit. She brings these claims to harass her opponents. She has not paid costs awarded against her.

[76] The Respondent fears that the Applicant will continue litigation against him as a means to harass him. He seeks an order that the Applicant cannot bring any further or other proceedings against him.

Law and Analysis

[77] Section 140(1) of the Courts of Justice Act R.S.O. 1990, c.C.43, permits a judge to order that a person may not institute any further proceeding in any court except by leave if the Court is satisfied that the person has persistently and without reasonable grounds instituted vexatious proceedings in any court or conducted a proceeding in any court in a vexatious manner.

[78] The purpose of s. 140(1) of the CJA is to prevent abuse of the court's process. This is particularly relevant in family law matters where a party may continue to initiate repeated court proceedings as a form of harassment of a former spouse or partner.

[79] I have found that these parties are not spouses. This should be the end of all matters between them. There is no reason for them to have any further interaction with one another. The Applicant is subject to terms of probation which prevent her from contacting the Respondent.

[80] However, based on prior litigation commenced by the Applicant in other Courts, I am concerned that she may use further litigation as a means to punish the Respondent for the breakdown of the relationship and what she perceives to be his wrongs against her.

[81] Family law cases are stressful, emotional and costly for all parties. No one involved benefits from protracted or repeated litigation.

[82] The Applicant has instituted numerous proceedings in this and other courts which have been found by other judges to be frivolous, vexatious and without merit. In my view, it is appropriate in this case to make an order under s. 140(1) of the CJA preventing the Applicant from instituting any further proceeding against the Respondent without leave of the court.

Order

[83] I make the following Order:

1. The Applicant’s Application is dismissed in its entirety.

2. The Applicant shall not commence any further proceeding against the Respondent in any court except with leave of a judge of the Ontario Superior Court of Justice.

[84] If the parties cannot agree on costs, the Applicant shall serve and file submissions on costs within fourteen days from the release of these Reasons. The Respondent shall serve and file costs submissions fourteen days thereafter. The submissions shall be no more than three pages, exclusive of any costs outline, case law and offers to settle. There shall be no reply submissions. Submissions may be served between the parties by email and sent to my attention to Patrizia.Generali@ontario.ca.

E.L. Nakonechny, J.

Released: November 5, 2020