Court File and Parties

Newmarket Court File No.: FC-19-58834-00 Date: 2021-07-13 Ontario Superior Court of Justice

Between: Ainsley Anthony Drakes, Applicant And: Karen Heather Lee-Drakes, Respondent

Counsel: Jared Persaud, Counsel for the Applicant Robert Shawyer, Counsel for the Respondent

Heard: May 26 and 29, 2022

Reasons for Decision

JARVIS J.

[1] Some spouses resign themselves to a marriage they cannot salvage than chose a future they cannot predict. The issue in this focussed trial involves a disputed valuation date, the determination of which will impact the parties’ financial affairs in a trial to be held later. The applicant (“the husband”) claims that the valuation date is December 15, 2015: the respondent (“the wife”) claims that the date is February 14, 2012. The parties are not divorced. The most significant asset that will ultimately be affected by the Court’s decision is the parties’ former matrimonial home, its title registered in the wife’s name and unencumbered.

[2] Pursuant to the Trial Scheduling Order, the evidence of the witnesses (with two exceptions) comprised transcripts of the parties’ pre-trial questioning (examination-in-chief and cross-examination) and a brief, supplementary affidavit upon which the parties were also questioned. The husband’s partner and the parties’ three children also filed affidavits and were questioned. Two witnesses testified virtually. Accordingly, the trial evidence comprised:

(a) A transcript of the husband’s questioning taken on November 29, 2021; (b) The husband’s affidavit sworn on February 25, 2022; (c) An affidavit of Teneisha Greaves, the husband’s partner, sworn on May 24, 2022; (d) Vonetta McGhie, the husband’s former parole officer between April to December 2015. She testified virtually; (e) A transcript of the wife’s questioning taken on November 30, 2021; (f) The wife’s affidavit sworn on May 25, 2022; (g) The affidavits of Myles Drakes (“Myles”) sworn on May 16, 2022; Keyanna Drakes (“Keyanna”) sworn on May 17, 2022; and, Joshua Drakes (“Joshua”) sworn on May 16, 2022. They are the parties’ adult children, all estranged from their father; (h) Andrea Chetram, a tax preparer/accountant whom the wife consulted in 2017. She testified virtually.

Background

[3] The parties met in high school, began dating in 1983 and married on June 22, 1991. Myles was born on April 19, 1993; Keyanna was born on December 24, 1994; and, Joshua was born on April 4, 1998.

[4] In 2002 the husband began an extramarital relationship with Ms. Greaves, the wife’s cousin. The wife was unaware of the relationship and dismissed family and friend rumours about it in the years following. The husband denied the rumours: the wife believed him.

[5] In 1999 the husband and an associate were charged with a number of criminal offenses involving an international scheme that defrauded hundreds of victims, worldwide. This scheme related to advance fee fraud commonly known as the “Nigerian letter scam”. In a trial decision dated January 17, 2006 Epstein J. (as she then was) described the scheme.

Simply put, the scheme worked in the following way. Prospective victims received unsolicited correspondence purporting to be from a senior Nigerian civil servant, government representative or successful businessman, advising them of a business opportunity. The offer involved the promise of the transfer of a large sum of money out of Nigeria allegedly coming from an over-invoiced contract from a Nigerian company or one of the Nigerian government ministries, into the victim’s account. Prior to the transfer, the victim was asked to pay fees that the perpetrator represented as being necessary to the transaction. The victim usually paid a substantial amount of fees to the perpetrator before realizing the scheme was a fraud. [1]

[6] The husband was convicted of five counts of fraud, one count of attempted fraud, and one of money laundering. [2] He was sentenced to five years in the penitentiary. He appealed. During his appeals, first to the Ontario Court of Appeal (appeal dismissed [3]) and the second to the Supreme Court of Canada (leave to appeal dismissed [4]) the parties continued to cohabit. The husband also continued his relationship with Ms. Greaves. A child was conceived. Shortly before the Court of Appeal dismissed the husband’s first appeal (July 2009) the husband disclosed to his wife that Ms. Greaves was pregnant with their child during a three-way meeting at a local coffee shop. A physical confrontation between the wife and Ms. Greaves ensued. The husband returned to the matrimonial home with the wife.

[7] The husband’s child with Ms. Greaves was born in September 2009. He and Ms. Greaves continued their relationship. While suspicious, the wife accepted the husband’s assurances that the relationship had ended. She told the court that she was very religious and did not believe in separation or divorce.

[8] On January 29, 2010 the Supreme Court of Canada dismissed the husband’s appeal. He began to serve his prison sentence. The wife regularly visited him in prison. In October 2010 the husband was released on day parole and was subsequently granted full parole in August 2011. He returned to the matrimonial home (“the Headford Avenue property”). He and Ms. Greaves continued their relationship, unsuspected by the wife.

[9] The wife testified that throughout their marriage the parties always celebrated a Valentines Day dinner together. It was a special event for her, and them, sometimes elaborate. But they did not celebrate Valentines Day dinner on February 14, 2012. The wife’s evidence is that the husband never returned home that night and never responded to her attempts to contact him. For her, that was the “…absolute last straw. Our marital relationship was over”. [5] The next day (or the day after that [6]) when the husband returned home, she told the husband to leave. By this time the parties were not sleeping together in the master bedroom according to the wife. Before that Valentines Day, and afterwards, the husband slept in several areas of the home, often in the basement and sometimes in the master bedroom when the wife was working. Joshua (the parties’ youngest child) testified that his father began sleeping in the basement in 2011.

[10] The husband said that he never left the matrimonial home. The wife said that the husband mostly slept elsewhere, coming to the matrimonial home where he kept an office and where he would be available for the children while she was working.

[11] On September 14, 2012 the husband was arrested at the matrimonial home. He was charged with six offenses involving financial crimes, later increased to a total of eighteen charges many of which were alleged to have occurred in 2009 while on release pending appeal. He was incarcerated. In a Parole Board decision dated October 18, 2013 the husband’s full parole was revoked. The following excerpts from that decision are relevant to the issue of credibility in this proceeding.

During your community release you provided false and misleading information about your activities, employment, relationships, financial status, family dynamics and associations and you falsified documents to support your claims…

Due to your lack of transparency, continuing attempts to manipulate your case management team, and the charges before the courts, the Correctional Service Canada recommends that your full parole release be revoked as you appear to be engaged in your offence cycle…

Based on this information, the Board concludes throughout your entire time of being supervised in the community you engaged in manipulation, and deceit that passed unrecognized. You failed to abide by the condition to disclosure all financial information. You lied about employment and used false cheques to verify employment and as well, you stated you were paying a mortgage when in fact the mortgage on your home valued at over a million dollars was discharged in 2011. You may own property, the house where your girlfriend and daughter reside, that has not been disclosed. At the time of your arrest, it was discovered that you were harbouring in your home a woman who was in Canada illegally. Further, you have engaged in ongoing deceit which involves your relationship with another woman who is the mother of your young daughter; the disposition of your Porsche; use of fraudulent documents; and conducted money transfer by using an alias. There are concerns regarding your whereabouts for periods of time which remain unaccounted for. You failed to be honest and transparent with those supervising your release. As well, you have incurred 18 new charges for fraud type crimes that are currently before the court. The Board concludes that your release was plagued with deceit and manipulation, you made no attempt to work co-operatively with your case management team (CMT), abide by either special or standard conditions, have re-entered your offence cycle and that there has been no apparent break in your criminal activity. [7]

[12] While the husband was incarcerated, the wife visited him, at first every week after work (he was being held in Milton) and then, after his transfer to the Joyceville penitentiary (“Joyceville”), less frequently because of the distance involved between Richmond Hill and Kingston, Ontario. Sometimes Joshua visited with her. On the husband’s birthday in February 2013, and while he was in jail, the wife updated her profile picture on social media and posted a 2010 photograph of the parties together, standing close and smiling. The posted comments were favourable (“lovely couple” from one).

[13] On August 18, 2013 the husband wrote the wife a lengthy letter from Joyceville. Relevant are the following excerpts.

It is time for me to come clean and say sorry for the wrekless (sic), disrespectful, selfish, and disgusting harm that I have caused you. You might think that I am leaving you, the truth is I am not leaving you, I am actually saving you. I am saving you from living a life of any more misery because of the brute that I am. The lord is doing you a favor (sic) by making me let you go. You deserve someone that will treat you great and cherish you. These two things I can no longer offer you, as I have gone past the point of no return. Karen, do yourself a very big favor (sic) and don’t look back at me. The person you once knew is no longer alive. The Ainsley you once knew died many many years ago…As I write these words, my eyes are filled with tears, but I know deep in my heart that this is the only honorable (sic) thing to do…

You and I will always be friends, I think this will be true…I hope that after you realize that this is the best thing that could have happened for the both of us, that we can start over new relationship, as being the great friends we are, before we were ever dating. [8]

[14] In answer to a question from the court, the husband said that he meant what he wrote.

[15] The husband was released on parole in November 2014. He did not tell the wife. A term of his release was that he reside with his sister. The wife said that she discovered the husband’s release when she encountered him at a local mall about two weeks afterwards. The husband told the court that he did not tell the wife because he wanted to surprise her. He had maintained his relationship with Ms. Greaves.

[16] The parties dispute the authenticity of a typewritten “To Whom it may concern” letter dated January 5, 2015. The wife claimed that the husband signed the document: while acknowledging that the signature appeared to be his, the husband denied signing it. This is what the letter said:

January 09, 2015

To Whom Tis (sic) May Concern:

I Ainsley Anthony Drakes hereby release and relinquish all rights to the matrimonial home at 17 Headford Avenue, Richmond Hill, ON. This address was once a matrimonial home but I was not there for a period of over 10 years due to infidelity. Most of those years was spent with my girlfriend Teneisha Greaves aka Debbie. I would like to sign over my rights to the 3 children I have with Karen Lee Drakes, Myles Dean Drakes April 19, 1993, Keyanna Tiffany Drakes December 25, 1994 and Joshua Miguel Drakes May 4, 1998.

This is my final wish. I can be reached at 647-539-4854.

Thanks,

Ainsley Drakes [9]

[17] On February 14, 2015, Valentines Day, the wife took a picture of the husband while the parties were dining at a local restaurant. She sent a copy to Ms. Greaves. The husband returned to his sister’s residence after dinner.

[18] Ms. McGhie, the husband’s parole officer testified that between April 3 and October 9, 2015, four day-passes were issued to the husband to visit the wife. Ms. McGhie had several discussions with her. In an October 1, 2015 telephone discussion with the wife, Ms. McGhie noted that the wife confirmed her continuing support for the husband, she (the wife) had no concerns about his compliance with his parole conditions, that he was a good father and that while she was grateful for the visits, she regretted that he was not allowed to stay overnight. The final pass coincided with the husband’s release on full parole, that ending on December 15, 2015. The husband did not return to the matrimonial home but went to live with Ms. Greaves and their daughter, with whom he has resided ever since.

[19] Between 2012 to 2015 the wife filed income tax returns in which she declared as “Married” her tax status. She testified that she had done this after speaking with a Canada Revenue Agency representative. There was no evidence as to when this discussion was held or the name of the representative. Ms. Chetram testified that when she was consulted by the wife in July 2017 to prepare and file 2016 tax returns for the wife, the children and “her ex-husband” she explained to the wife that she could declare her status as “Separated” even though the parties were not divorced. The wife’s 2016 tax return declared her status as “Separated’. Ms. Chetram was not asked to assist the wife in correcting and filing amended tax returns for 2012 to 2015: hypothetically, the allegedly incorrect marital status declarations by the wife were financially disadvantageous to her. The wife did not take steps to amend or refile her 2012 to 2015 returns.

[20] In an email exchange between the parties at the end of August/early September 2017 the wife reflected, critically and with obvious regret and anger, about the parties’ relationship and their children. Among the many things written, she said,

I wished you had the decency to tell me 20 years ago that you didn’t want me or the children in your life. Instead you waited for me to hit 50, what a cruel thing to do. [10]

[21] The wife turned 50 years old in 2015.

Credibility

[22] Each party challenged the other’s credibility and that of the other’s witnesses, with the exception of Ms. McGhie and Ms. Chetram.

[23] Acknowledging, reluctantly, that he was an habitual liar (“Well, yes and no is my answer” [11]) with a history of judicial and administrative findings of deceitful and manipulative behaviour spanning well over almost two decades and involving a broad spectrum of “activities, employment, relationships, financial status, family dynamics and associations” [12], the husband deflected to the improbability of the wife’s evidence about her valuation date, pointing to the inconsistencies between her testimony and her actions and the absence of objective, corroborative evidence. Theirs was a “never-ending” romance that climaxed in December 2015.

[24] Teneisha Greaves’ said that she gave the husband an ultimatum in November 2014 that if he continued living with the wife that would be the end of their relationship when his parole ended but elsewhere said that the parties continued their relationship between 2014 and 2018 (even though they weren’t living together). The wife often bragged that she and the husband were still intimately involved. Ms. Greaves disclaimed any financial interest in this case in the event of the husband’s success.

[25] The wife focussed on the husband’ record of dishonest and manipulative behaviour, contrasting that with hers which she described as “candid, straightforward, consistent, honest and [presented in a] logical manner” [13]. In several areas (such as dealing with the disputed authorship of the January 2015 “To Whom Tis (sic) May Concern” letter) the court noted that the narrative of the wife’s evidence was more robust and clear.

[26] Myles and Keyanna testified that their mother told them in June 2012 that she and their father had separated: Joshua said that Myles told him. In his trial affidavit, Myles said that he noticed a cooling in his parent’s relationship in or around October 2010 and that he noticed that his father began to sleep in the basement in 2011, but in an affidavit filed by the wife in separate civil proceedings Myles said that in June 2012 it was he who usually slept in the basement (it was apparently unfurnished). Keyanna testified that her mother was “not very transparent with [her] or [her] siblings with respect to…” her parent’s relationship. She spent most of her time focusing on her schoolwork and extracurricular activities. [14] Beginning in September 2012, and for the next five years, she began attending university outside the Greater Toronto Area, living in residence or, after her first year, with others. Joshua, who was thirteen years old in 2012 was told by Myles in the summer 2012 that his parents had separated, and later in September by his mother, and only visited his father in prison with his mother “not because [his] parents were together but simply due to the fact that [his father] was a family member in distress”. [15]

[27] As this court has frequently observed, the assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may impress the court with the clarity, or common sense, of their narrative but be unreliable because the objective facts are inconsistent with that narrative. Or a witness may be so interested in the outcome of the case that they are incapable of making an admission or facilitating the disclosure of information that they perceive as helpful to the other party or harmful to them. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. In Al-Sajee v. Tawfic [16] by Chappel J. observed that,

… the judge is not re qui re d b y l a w to b eli ev e o r d i s b eli ev e a w itn e ss ' s t e stimo n y in its e nt i re t y . O n the c ont ra r y , t h e y m a y ac ce p t non e , p ar t or a ll of a w itn e ss ' s e vid e n c e , a nd m a y a lso a tt ac h di ffere nt we i g ht to di ff er e nt p ar ts of a w itn e s s ' s e vid e n c e ( s e e R . v . D.R . , [ 1996] 2 S.C. R . 291 ( S.C.C. ) , a t p a ra g r a ph 93 ; R . v . J.H . , [ 2005] O . J . N o. 39 (O nt. C. A .) a t p a r a g r a phs 51 - 56 ; M c In t y re v . Ve i no t , 2016 N SSC 8 ( S.C. ) , a t p ara . 22 ) . [17]

[28] Excepting Ms. McGhie and Ms. Chetram, whose evidence was credible, none of the parties’ evidence or that of their children and Ms. Greaves was disinterested in the outcome, that being the significant impact of the valuation date on the parties’ financial positions. The determination of that date in this case impacts more than a difference in calculating the presumptive equalization payment because the husband started this Application in April 2019, more than six years after the wife’s valuation date. His equalization claim would be statute-barred unless the court makes an Order extending time pursuant to sections 7(3)(a) and 2(8), respectively, of the Family Law Act. (“the Act”). [18] If the valuation date is December 15, 2015 the action proceeds. This elephant in the room percolated through the witnesses’ cross-examinations. For example, when asked by Mr. Shawyer whether she had a financial interest in the outcome if the husband’s valuation date was found, Ms. Greaves disclaimed any knowledge whether the husband would share with her any part of an equalization payment award, should one be made. Similar questions were posed to the wife and the children.

[29] Counsel catalogued many reasons why their client’s evidence should be preferred. The following observations may be made:

(a) Given the history of the husband’s fleeting acquaintance with the truth, his deceit and manipulative behaviour over the last two decades, the court must sceptically approach his testimony. Only where there is independent, corroborative evidence should any testimonial weight be attributed; (b) The narrative of the wife’s evidence was more robust than the husband’s but lacked important and consistent, objective corroboration relating not only to her choice of valuation date but also her actions, especially where those actions appeared to be inconsistent with her testimony. Why, for example, if her relationship with the husband was beyond salvage after February 14, 2012 did the wife post on social media in 2013 a 2010 photograph of the parties as a happy couple? Or regularly visit the husband in jail? Or send a February 14, 2015 cellphone photograph of the husband and her at Valentines’ dinner to Ms. Greaves? The wife explained her actions as reflecting her religious beliefs and life-long friendship with the husband. While, unlike the husband, the wife has no history of dishonesty, caution must be exercised in weighing the subjective evidence of her intent against the backdrop of uncontested facts; (c) The parties’ children are estranged from their father about whom they have little, if anything, favourable to say. They have had no relationship with him for years and no interest in meeting their half-sister. It was obvious to the court that they have a close relationship with their mother; (d) On the pivotal issue of the valuation date, the children’s evidence reflected a deterioration in their parent’s relationship shortly before 2012, and which continued afterwards, but could not illuminate their mother’s continuing dealings with their father. Their evidence in this latter respect must be approached cautiously, especially since they repeated at trial what they said their mother told them years before (i.e., that she and their father had separated) when he was still present in the family home. However admirable in principle may have been Joshua, then thirteen years old, visiting his father in prison simply because he was “a family member in distress”, the court has difficulty with that explanation. This evidence suggests an after-the-fact tailoring of evidence to suit the wife’s narrative.

[30] In fairness to the witnesses though, the interplay between a layman’s sense of a marital “separation” and the legal concept of “valuation date” may help explain some of the inconsistencies in testimony.

[31] Much was made by the wife about the husband’s visceral dishonesty as if to inversely enhance her credibility about those events equally suggestive of a continued marital relationship as not. In circumstances, such as in this case, where stated intentions and actual actions are, prima facie, inconsistent the court should rely less on each party’s stated intent than the objective, uncontested evidence, applying (where appropriate) some common sense.

Valuation Date - Law and Discussion

[32] As this court observed in Jayawickrema v. Jayawickrema [19], the identification of a valuation date is the first step in determining whether a spouse owes an equalization payment to the other spouse and, if so, its amount. Sections 4(1) and 5(1) of the Family Law Act [20] (“the Act”) set out, respectively, what “valuation date” means and its operative impact once the spouses’ net family properties have been calculated (bolding added).

4(1) “valuation date” means the earliest of the following dates:

1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
2. The date a divorce is granted.
3. The date the marriage is declared a nullity.
4. The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.
5. The date before the date on which one of the spouses dies leaving the other spouse surviving.

Equalization of net family properties

Divorce, etc.

5 (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (1). (bolding added).

[33] Section 1(1) of the Act defines “cohabit”.

“cohabit” means to live together in a conjugal relationship, whether within or outside marriage; (“cohabiter”)

[34] Identifying the valuation date involves the determination of two issues: the date when the parties separated and the point in time when, as noted in s. 4(1) of the legislation, “there is no reasonable prospect that [the spouses] will resume cohabitation” (italics added). Most often these two events are the same but where a dispute about the choice of a valuation date arises it is invariably financially driven due to the consequences of the date selected. In cases where, as in this case, the parties continued to reside under the same roof after an alleged separation event and there is, also as in this case, a dispute about whether their cohabitation had ended with no reasonable prospect that they would resume cohabitation, caution must be exercised before concluding that the marriage cannot be salvaged. In Newton v. Newton [21] Czutrin J. observed:

… extreme caution should be exercised in fixing a valuation date. Parties may attempt to manipulate valuation dates to attempt to improve their financial position vis a vis a possible settlement or trial. (bolding added).

[35] Separation and valuation dates are not necessarily synonymous. This was made clear by the Ontario Court of Appeal in Oswell v. Oswell. [22] In that case, the only issue in the appeal was the valuation date fixed by the trial judge: the husband claimed that the valuation date should be August 1984 when he said that the parties separated even though they continued to live under the same roof afterwards whereas the wife contended that the date should be March 1988 when she was served with a petition for divorce. The choice of date materially impacted the amount of the equalization payment that the husband presumptively owed. After a careful review of the evidence, the trial judge selected the later January 1988 date as being the valuation date, a selection that the Court of Appeal observed was “somewhat arbitrary, but the Act contemplates arbitrary decisions”. [23] Those decisions must, however, be supported by the evidence. [24]

[36] A thoughtful and comprehensive review of the general principles and indicia of “living separate and apart” and determining a valuation date was made by Chappel J. in Al-Sajee v. Tawfic. [25] In that case the parties disputed their date of separation: this impacted the determination of their net family properties. The husband claimed a date about three and a half years earlier than the wife’s date. Chappel J. thoroughly reviewed the parties’ evidence, assessed their credibility and selected the husband’s date, concluding that despite evidence that the parties, among other things, had travelled together internationally with their children and occasionally spent overnights at the other’s residence there was no resumption of cohabitation having reconciliation as its primary purpose. Relevant to the analysis in the case now before this court are the following observations:

… Determining the point at which there was no reasonable prospect of resumed cohabitation requires the court to carefully consider and weigh all of the relevant factors objectively. In this regard, Scott J. commented as follows in Hogarth v. Hogarth, 2018 ONSC 3580 (S.C.J.), at para. 9:

The court must look at the specific facts related to each situation, as the determination of the valuation date is fact driven. The court must draw conclusions concerning the intentions of the parties with respect to their relationship. Intentions by necessity will be decided by a review of both the statements and actions of the parties and an analysis of the consistency of one with the other. [26]

[37] Deconstructing cohabitation involves a two-fold inquiry: examining the parties’ intent (a subjective threshold, rigorously tested) and an objective review of the facts and circumstances. [27] A formulaic, bright line test is impossible because, as the Supreme Court acknowledged in M. v. H. [28], the approach to determining what constitutes a conjugal relationship must be flexible, the court must be alert to the cluster of factors which reflect the diversity of conjugal/marital relationships that exist in modern Canadian Society. [29]

[38] In this case, the court cannot accept either party’s choice of valuation date for these reasons:

(a) The wife’s evidence that Valentines Day 2012 was the valuation date is unsupported by any objective evidence. The parties continued to reside in the matrimonial home and occasionally engaged in sexual relations. They attended some social functions (such as a birthday party for the wife’s grandmother) and church, although the parties dispute the reasons and religious frequency. While, the court is not unmindful of the generally accepted considerations for determining the existence of a conjugal relationship as set out in Molodowich v. Penttinen [30], none of which is determinative, a holistic assessment of the evidence in this case supports neither party’s valuation date narrative; (b) As noted above in paragraph 29 dealing with the wife’s credibility, her actions in the 2013 social media posting, regular jail visits (almost always without any of the children) and her Valentines Day 2015 photograph of the parties sent to Ms. Greaves are suggestive of a continuing marital relationship between the parties, something more than a post-marital friendly relationship urged by her or one actuated by religious belief; (c) The wife filed the parties’ Income Tax Returns between 2012 to 2015 declaring the parties as “Married”; (d) When the wife enrolled in the Canada Post Registered Pension Plan on with Canada Post on October 5, 2014, she made a revocable designation on November 10, 2014 in favour of the husband as beneficiary. The children were identified as beneficiaries other than the husband. Her Personalized Pension statement as at December 31, 2018 referenced these designations; (e) There was no credible explanation from the wife why she was coordinating with Ms. McGhie home visits by the husband before his final parole or, also as recorded by Ms. McGhie, the wife regretted that he was not permitted by his parole terms to spend overnights at the matrimonial home; (f) The wife’s August/September 2017 email to the husband lamenting his decision almost two years earlier not to return to live with her once his parole had ended is wholly inconsistent with her testimony that Valentines Day 2012 represented the unsalvageable end to their marital relationship; (g) The wife testified that she did not believe in separation or divorce. Her post-February 14, 2012 behaviour reflects a cooling in the marital relationship which likely preceded that date but, given her continuing associations with the husband, is more consistent with an intention, a hope, to maintain the marital relationship; (h) The husband declared in his August 18, 2013 letter from Joyceville that he was letting the wife go as that was the “the only “honorable (sic) thing to do”. Elsewhere in that letter he wrote that he had “made up [his] mind that [he would not live] with a woman again in [his] life.” Although this latter statement has proven untrue, the husband told the court that he meant what he said in that letter when he wrote it; (i) The husband’s choice of valuation date is the date when he completed his sentence. He went to live with Ms. Greaves. It is a reasonable inference that he had decided at some earlier point in time that he would never be returning to live with her as husband and wife.

[39] This Court finds that, consistent with her religious beliefs, and as demonstrated by her continued associations with the husband after February 14, 2012, the wife never viewed the parties’ marital relationship as having ended until some point in time after December 15, 2015, as reflected by her August/September 2017 letter to the husband. Whatever she chose to know, and accept, about the husband’s relationship with Ms. Greaves the wife always held a reasonable prospect that the husband would return to live with her. As for the husband, he encouraged, manipulated in the court’s view, the wife’s feelings for him. Like his continuing relationship with Ms. Greaves after their child was born, he wanted the best of both worlds. Perhaps his Joyceville experience was an epiphany. It sounds like it.

[40] The valuation date is August 18, 2013, the date of the husband’s letter to the wife (“The lord is doing you a favor (sic) by making me let you go”). The court will hold the husband to his written word to the wife and to this court.

Disposition

[41] In addition to the court’s determination of the valuation date, the following is ordered:

(a) The parties shall exchange updated financial statements having August 18, 2013 as the valuation date by August 19, 2022; (b) The parties shall exchange Requests for Information by (“RFI”) by August 31, 2022 and respond to the other party’s RFI by September 30, 2022; (c) Leave is granted for questioning. Each party shall be limited to two hours; (d) If the parties cannot agree on the value to be attributed to the matrimonial home on the valuation date by August 31, 2022 then it shall be appraised by an accredited realty appraiser chosen by the parties whose cost shall be paid equally by them. In the event of a dispute about the choice of appraiser or their directions, counsel may arrange a teleconference with me through the judicial assistant. The court may give directions pursuant to Family Law Rule 20.3 to appoint an appraiser; (e) The parties shall schedule a settlement conference through court administration to be held by a judge other than me. All issues relating to disclosure must be concluded, by motion if necessary, before the conference. The parties shall comply with all settlement conference rules; (f) I shall remain seized of any trial of the financial issues.

[42] The court will determine the costs of this part of these proceedings but defer their payment (if costs are awarded) until final determination of all the remaining issues in these proceedings. If the parties are unable to agree on costs, the following directions shall apply:

(a) The husband shall deliver his submissions by July 29, 2022; (b) The wife shall deliver her submissions by August 14, 2022; (c) Reply (if any) to be delivered by August 21, 2022; (d) All submissions shall be single page, double-spaced. In the case of (a) and (b) the limit shall be four pages; reply shall be two pages. These submissions shall be filed in the Continuing Record, and a copy of the filed material forwarded to the judicial assistant (Hannah.maunder@ontario.ca); (e) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the above deadlines (also copied to the judicial assistant) but shall not form part of the Continuing Record; (f) Counsel are to advise the judicial assistant when they have filed their material.

Footnotes

[1], 2006 CarswellOnt 1585, [2006] O.J. No. 129, [2006] C.C.S. No. 3920, 68 W.C.B. (2d) 403. [2] 2006 CarswellOnt 8638, 73 W.C.B. (2d) 214. [3] 2009 ONCA 3937, 2009 ONCA 560, [2009] O.J. No. 2886, 252 O.A.C. 200, 84 W.C.B. (2d) 87. [4] 2010 CarswellOnt 491, 2010 CarswellOnt 492, [2009] S.C.C.A. No. 381, 270 O.A.C. 392 (note), 404 N.R. 395 [5] In the transcript of her evidence, the wife said that she told the husband to leave on February 15, 2012 (p. 47, q. 143). In her trial affidavit entered as Exhibit 4 (paragraph 8(c)) the wife said that she told him to leave on February 16, 2012. [6] Exhibit 4, paragraph 8(c). [7] Exhibit 2, Tab A, pages 4 and 5. [8] Ibid. Tab E. [9] Ibid, Tab F. [10] Ibid, Tab I. [11] Transcript of the husband’s questioning, pp. 99-100, q. 403-405. [12] Supra #7. [13] The wife’s closing submissions. [14] Exhibit 9, para.5 [15] Exhibit 10, paragraphs 6, 7 and 9. [16] 2019 ONSC 3857. [17] Ibid at para. 42. [18] R.S.O. 1990, c. F.3, as am. [19] 2020 ONSC 2492. [20] Supra #18. [21] (1995), 11 R.F.L. (4th) 251 (Ont. U.F.C.) at paras. 48 and 49. [22] 1992 CarswellOnt 306. [23] Ibid, para. 1. [24] As per Lococo J. in Di Francesco v. Di Francesco, 2011 ONSC 3844 at para. 38. [25] Supra # 11, at paras 12-26 and 32-40. [26] Ibid, at para. 39. [27] Takas v. Gallo, (1998) 6429 (BC CA) at para. 41. [28] [1999] 2 S.C.R. 3 at para. 59. [29] MacMillan-Dekker v. Dekker at para. 69. [30] 1980 CarswellOnt 274 (Dist. Ct).