ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Elvis Tetteh Mensah
Applicant
– and –
Wendy Akwele Agogo
Respondent
Vivienne Younger, Lawyer for the Applicant
Marcy Segal, Lawyer for the Respondent
HEARD: October 3-4, 2022
Ranjan K. Agarwal J.
AMENDED REASONS FOR JUDGMENT
Amended reasons: the text of the original reasons were amended on May 19, 2023. Amendments were made to paragraphs 1, 3, 8, 57, and 58.
I. INTRODUCTION
1The applicant Elvis Tetteh Mensah applies for, among other things, equalization of net family property. He says that that the respondent Wendy Akewele Agogo’s property on Delmonico Road in Brampton, is a matrimonial home. Wendy pleads that she and Elvis were separated in Summer 2005, before she bought the Delmonico Road home. Elvis claims that they did not separate until 2017.
2In March 2021, Justice Emery ordered a focused hearing under rule 1(7.2)(n) of the Family Law Rules “for the court to find the date of separation for all purposes under the Family Law Act.”
3I find that the parties separated in December 2004 (as submitted in Wendy’s closing submissions).
II. BACKGROUND FACTS
4Elvis and Wendy were married in May 1998. They have four children: Cheyenne (26), Jessica (24), Shayne (18), and Marianna (15). Elvis has two adult children from a previous marriage.
5Wendy works at Brampton Civic Hospital as a nurse. Elvis receives ODSP benefits. He used to work as a courier.
6Elvis and Wendy met in 1994. He was living in Toronto; she lived in Ghana. Wendy came to Canada in 1997 as a Convention Refugee.
7After getting married, Elvis and Wendy lived in an apartment on Lisa Street in Brampton.
8Elvis and Wendy first separated in 2001. They attempted to reconcile several times but finally separated in either December 2004 (according to Wendy) or on June 15, 2017 (according to Elvis). Wendy says Elvis abused her, which Elvis denies.
9Elvis’s address as of April 2005 was on Finch Avenue West, which is, inexplicably, a shopping centre.
10In May 2005, Wendy signed an agreement of purchase of sale to buy a newly constructed home on Delmonico Road in Brampton. Wendy is the only purchaser on the agreement of purchase and sale. She was solely liable for the deposits.
11Starting in August 2005, Wendy lived at Tatry (on Parkerhill Road in Mississauga), which is a social housing provider, with Cheyenne, Jessica, and Shayne.
12In early 2006, Wendy and Elvis conceived Marianna. Wendy describes the circumstances as “a moment of weakness”. She denies any reconciliation between her and Elvis.
13In 2006, Elvis was found guilty of possession of narcotics. He was sentenced to 33 months in jail. He has since been pardoned.
14The purchase of the Delmonico Road property closed in August 2007. Elvis is not on title.
15In November 2007, Elvis’s address changed to Tatry. His address changed again, now to Delmonico Road, in September 2008. Elvis used Delmonico Road as his mailing address with banks and government agencies until February 2014, when he moved to an apartment on Willowridge Road in Toronto.
16Elvis often travelled to Ghana and the Netherlands. The evidence on how often, when, and for what purpose was unclear though Elvis admitted to being in Ghana for three or five months at a time.
17In July 2016, Elvis was diagnosed with a brain tumour after suffering a seizure while staying at Delmonico Road. At the time, he was sleeping in Shayne’s bedroom. The brain tumour was removed in February 2017.
18Elvis’s address was Delmonico Road from September 2017 to March 2018. Wendy says she let Elvis stay at Delmonico Road to convalesce.
19According to Elvis, the parties finally separated in 2017 when Wendy orally abused him and he decided to move out of Delmonico Road. He says that he continued to stay at Delmonico Road, sleeping separately from Wendy, until February 2018, when Wendy changed the locks.
III. LEGAL FRAMEWORK
20The Family Law Act, RSO 1990, c F 3, defines “valuation date” as the earliest of, among other things, the “date the spouses separate and there is no reasonable prospect that they will resume cohabitation” (s 4(1)).
21In this hearing, I am being asked to decide when the parties first began to live separate and apart. My finding on when the parties separated and there was no reasonable prospect that they would resume cohabitation will settle the valuation date. This analysis involves a determination of when the parties began to live apart, and at least one of them intended to live separate and apart from the other. “To determine the date of separation or, in fact, whether a separation has occurred, involves an analysis of what might be found to be an event of separation, combined with how the parties subsequently lived their lives.” See O’Brien v O’Brien, 2013 ONSC 5750 at para 51.
22In Al-Sajee v Tawfic, 2019 ONSC 3857, Justice Chappel lists 26 principles and considerations from the caselaw. The factors relevant here are:
- the parties cannot be cohabiting in a conjugal relationship
- the determination of whether parties who reside in the same home are living separate and apart involves a consideration of all relevant factors, including whether they are occupying separate bedrooms or areas of the home and any stated reasons for remaining in the same residence
- where the parties live primarily in separate residences, the court must examine all of the other circumstances of their relationship to determine whether they were, in fact, living separate and apart (including the reasons for maintaining separate residences and whether the parties kept personal items at each other’s residence)
- there must be a withdrawal by one or both spouses from the matrimonial obligation intending to destroy the matrimonial consortium or of repudiating the matrimonial relationship (i.e., the companionship, love, affection, comfort, mutual services and support, and sexual relations typically involved in the marital relationship)
- a party’s intention to live separate and apart will not necessarily be broken by brief references by that party to the possibility of reconciliation where no serious steps were taken to move towards such a goal
- that the parties have engaged in sexual relations does not determine whether they remain separate and apart or have reconciled
- the fact that a party has had relationships with other people is relevant but not determinative, particularly if the other party was unaware of the other relations
- discussion of family issues and problems and communication about daily issues
- changes in expectations regarding their accountability to each other for daily activities or sharing and participating in each other’s daily routines as in the past, such as eating meals together and sharing household chores
- continued participation in joint social activities
- spending vacations together, celebrating special occasions together, or purchasing gifts or exchanging other tokens of affection with each other
- attendances by both parties with their children for family events, activities and even family vacations are relevant but not determinative
- supporting each other with respect to extended family obligations, through difficult times and with each other’s personal issues
- documentary evidence respecting their relationship status is also relevant but, again, not determinative
- shared assets or any changes in the way the parties manage their financial affairs, including whether they have tried to separate their financial dealings
- the parties’ behaviour towards each other in the presence of third parties
- legal steps to terminate their relationship and resolve issues relating to their separation, including retaining a counselor or mediator
IV. CREDIBILITY
23Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Reliability engages consideration of the witness’s ability to accurately observe, recall, and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence. See R v GF, 2021 SCC 20 at para 82; R v HC, 2009 ONCA 56 at para 41.
24There were seven witnesses. Frank Bofah, Alex Jana, Regina Ohunta, Marilyn Currie, and Cheyenne filed will-say statements and were cross-examined in court. Elvis and Wendy were examined in chief and cross-examined in court.
25On balance, I did not find Elvis, Mr. Bofah, or Mr. Jana to be credible. In contrast, I found Wendy, Ms. Ohunta, Ms. Currie, and Cheyenne to be credible—I prefer their evidence over Elvis’s, Mr. Bofah’s, and Mr. Jana’s evidence.
26Mr. Bofah and his wife were Elvis and Wendy’s friends. Mr. Bofah says he and his wife convinced Elvis and Wendy to buy a house near them (Delmonico Road). In his affidavit evidence, he said they visited Elvis and Wendy between 2007 and 2015 “when they had barbecue and party and vice versa.” He made a number of conclusory statements about Elvis’s and Wendy’s marriage, largely based on the fact that Marianna was born in 2007. He also testified that he remembers Wendy giving birth to Cheyenne and him and his wife being present for the naming ceremony, which is impossible since Cheyenne was born in Ghana long before Mr. Bofah met Wendy in 2006. In his oral evidence, Mr. Bofah was confused between Cheyenne, Shayne, and Marianna. He was conscripted by Elvis to negotiate a resolution with Wendy. In cross-examination, he admitted that his evidence was “in line” with Elvis’s information.
27Mr. Bofah’s evidence was inconsistent. He has a personal connection to Elvis and seems to have an interest in the outcome. His observations about the BBQs and parties were incomplete. He sounded hesitant and biased. There is no independent evidence that confirms his testimony.
28Mr. Jana says he has known Elvis and Wendy for 15 to 17 years. He said he went to their home in 2009 to repair some crown moulding for Elvis. His evidence is that he was at the house for 6 or 7 hours; Wendy came home, left, and then returned; she and Elvis prepared dinner for the three of them and they ate together; and the four children came home from school or daycare while he was there. Mr. Jana’s will-say statement included the children’s names but he couldn’t remember them in cross-examination. Wendy denies this incident ever happened—she says she has never even met Mr. Jana. At the time, Wendy was working 12-hour shifts and, as such, wouldn’t have been coming and going from the house. Like Mr. Bofah, Mr. Jana’s evidence is conclusory—he says that Elvis and Wendy were like “husband and wife” but this observation is based on this singular alleged visit and meeting them at the grocery store.
29Mr. Jana’s evidence is also inconsistent. He too has a personal connection to Elvis and seems to have an interest in the outcome. He also sounded hesitant and biased. There was no independent evidence to confirm this event ever happened.
30I discuss Elvis’s specific evidence in more detail below. His evidence was not credible. There were too many inconsistencies: internal inconsistencies, inconsistences between him and other witnesses, and inconsistencies between his testimony and the documentary evidence. Elvis’s power of recollection was poor. I don’t believe he was candid and straightforward with the court. On various issues, some of them non-contentious, Elvis refused to answer questions directly. He made bald statements with no supporting evidence or particulars. If a contrary view was put to him, his answer was, invariably, that the other person was wrong or lying (including his daughters)—he never made an admission against interest.
31Ms. Ohunta has known Wendy since 2001. She was classmates with Wendy and they are friends. She testified that she hardly saw Elvis, including when she babysat Shayne when he was younger. She recalled last socializing with Elvis and Wendy over 15 years ago. Ms. Currie has worked with Wendy since 2008—they are close friends and socialize 2 to 3 times per week. She last saw Elvis at a BBQ at Delmonico Road in 2014 or 2015—she says he stopped by after coming back from Ghana. Otherwise, she doesn’t recall seeing Elvis around Delmonico Road or with Wendy. There were little or no inconsistencies in either witnesses’ testimony. They have no motive to deceive. They admitted when they were unsure or unclear. Their evidence was candid and straight-forward.
32Cheyenne’s testimony was highly credible. She admitted to having a better relationship with Wendy than with Elvis but she didn’t appear biased or strategic. She described Elvis as a “roommate” because he hasn’t been around since she was 8 years old. She was adamant that Elvis didn’t live with them at Tatry or Delmonico Road—she described him as coming “around from time to time” and staying there “on occasion” but not living with them since 2004. Cheyenne denied Elvis’s accusation that she was being pressured to testify by Wendy. Even then, she made clear that she loves and respects Elvis.
33I discuss Wendy’s evidence in more detail below. Her evidence was largely credible. There were only a few inconsistencies. She was candid with the court. She recalled many factual matters with some precision. Her testimony accorded with the documentary evidence.
34On credibility, Elvis argues that Wendy’s evidence is “faulty and problematic” because she didn’t report any alleged abuse by Elvis and there are no photos or medical records as evidence of abuse. I don’t accept this argument. First, Cheyenne testified that Elvis abused Wendy—I prefer her evidence over his. Second, it is a myth that assault victims report the offence at the earliest opportunity or at all. In R v DD, 2000 SCC 46, the Supreme Court of Canada identified several reasons why an abuse victim may not disclose abuse, including “embarrassment, fear, guilt, or lack of understanding or knowledge.”
V. ANALYSIS AND DISPOSITION
35In determining that Wendy and Elvis separated in 2015, I have considered all of the relevant factors to do a global analysis. In sum, I find that:
- Elvis moved out of Wendy’s house in 2005
- between 2008 and 2014, he used Delmonico Road as a way-station—he listed that address with various agencies, got his mail there, and may have stayed there sometimes but he and Wendy never lived together as spouses
- after his brain tumour in 2016, Wendy let him convalesce at Delmonico Road but again there was no marital relationship between them
36Elvis’s case turns on the fact that he and Wendy conceived Marianna after Wendy’s asserted separation date and that there is some documentary evidence that he lived at Delmonico Road. That Wendy and Elvis resided in the same home together does not necessarily mean that they were not living apart. Spouses can be living separate and apart under the same roof. See Al-Sajee, at para 26.
37I accept Wendy’s evidence that she allowed Elvis to stay at Delmonico Road to foster a relationship with their children and to convalesce after his brain surgery, both of which were driven by her values and faith. Her explanation for why Elvis cohabitated with her after 2005 is plausible and reasonable in the circumstances of this case.
A. Marital Consortium
38Other than one “moment of weakness” in 2016, there is no evidence that Wendy and Elvis were ever intimate. When Elvis stayed at Delmonico Road, he slept in Shayne’s room. There is no evidence of companionship, love, affection, comfort, mutual services and support, or sexual relations typically involved in the marital relationship.
39Elvis filed photos from 2016 that were taken at Delmonico Road. I give this evidence no weight. The photos don’t show Elvis and Wendy together as spouses or prove that Elvis was living at Delmonico Road.
40Elvis also filed text messages between him and Wendy that show some affection and sometimes use words like “home” or “relationship”. The text messages are largely self-serving—Wendy’s responses often are perfunctory and business-like (e.g., “Do you mind telling me how much it cost for the tap? I will also like to have the receipt if you don’t mind.”). Though there are some tender messages that Elvis says shows he and Wendy were in a relationship in 2016 and 2017, I don’t believe they show anything more than civility and familiarity between two people who were married, raising four children together, and following a significant health scare. This evidence also has to be viewed in the context of Elvis staying at Delmonico Road to convalesce after his brain surgery—there had to be some friendliness between Elvis and Wendy for Wendy to let him stay there.
B. Other Relationships
41Elvis had at least one sexual relationship with another person during this period, which Wendy knew about. Although Wendy suspects that Elvis had other relationships, I don’t make any findings on this issue as the evidence is inconclusive.
C. Relationship Status on Important Documents
42Elvis put into evidence several hospital records. In January 2008, William Osler Health System showed Elvis living at Tatry. In 2012 and 2014, Osler showed Elvis living at Delmonico Road. Both times, Osler listed Wendy as Elvis’s wife. In late 2016 and early 2017, Brampton Civic Hospital and Mississauga Hospital showed Elvis living at Delmonico Road. The doctor’s notes and medical records describe Wendy as Elvis’s wife or spouse. In at least one case, Wendy signed a document identifying her as Elvis’s spouse. I don’t give much weight to these documents—there is no evidence that Wendy self-identified as Elvis’s wife and hospital staff may have made assumptions about her relationship with Elvis or carried forward stale information. That she signed a pre-filled document is also not determinative that she had a marital relationship with Elvis.
43These documents were filed with several handwritten notes on them—as Elvis didn’t testify to the notes, I disregarded them.
44Elvis also relies on the fact that he was covered by Wendy’s group insurance plan as a spouse. Wendy says that he was on her plan “at some point” but she “took away” the coverage because he was abusing them. Though Elvis claimed or received benefits in 2013 to 2015 and 2017 and the insurer lists him as Wendy’s spouse or a claimant, I also don’t give any weight to this evidence. I haven’t been provided any evidence on how the insurer makes these designations. Wendy’s evidence is that she didn’t receive statements from the insurer so she didn’t know that Elvis was claiming benefits until she tried to make a claim for the children’s eyeglasses and he had used up all of the coverage.
45Elvis’s driver’s licence history with the Ministry of Transportation shows he lived on Finch Avenue West from April 2005 to November 2007; at Tatry until September 2008; and at Delmonico Road until February 2014 and again between September 2017 and March 2018 (which is after he says he and Wendy separated). I have not been provided any evidence on how the Ministry confirms a driver’s address for this history. As Elvis was presumably self-reporting his address changes, he himself believed he lived elsewhere besides Delmonico Road between April 2005 and September 2017. Elvis explains this away by saying that he and Wendy agreed that he would use a different address because Wendy wasn’t filing her taxes and to increase her child tax benefits. There is no evidence that Wendy didn’t file her taxes or sought to manipulate tax benefits, or made any such agreement with Elvis.
46Elvis’s oral evidence was that he lived at Tatry from 2005 to 2007. Wendy put into evidence a letter from Tatry dated December 17, 2018, stating that she lived at Tatry as “a single mother…with her three children” from August 1, 2005, to November 30, 2007. If Elvis lived at Tatry during this period, the only documentary evidence contradicts his narrative.
47Elvis put into evidence some bank and credit card statements from 2012, 2014, and 2015 sent to him at Delmonico Road. All these do is show that Elvis received his mail at Delmonico Road. He also put into evidence some receipts from Acanac, an internet provider, from 2014, 2015, and 2017 that he says show he was paying for home internet at Delmonico Road. Wendy’s evidence, which I accept, is that Elvis was a heavy internet user so she asked him to get his own internet service when he stayed at Delmonico Road.
48Elvis also put into evidence bank statements that showed three bill payments in January 2015 for electricity, the water heater, and natural gas. I have no evidence of whether these payments were for utilities at Delmonico Road or somewhere else. At best, the periodic nature of these payments shows that Elvis made one-time contributions to the household’s utilities.
D. Finances and Assets
49Elvis’s and Wendy’s financial dealings were separate. They did not share any assets. Elvis says he paid for half the down payment for Delmonico Road. Wendy denies that he did so. There is no evidence of any such contribution. He also says he contributed to the house’s maintenance, including painting, shovelling snow, and mowing grass. Though Wendy does not dispute that Elvis did some maintenance, even Elvis’s own evidence is that this work was sporadic (painting when they first moved in; replacing a chandelier in 2008; and overseeing stonework in 2010).
50Elvis also says he paid utility and other bills. In support, Elvis filed 150 Interac e-Transfer receipts showing random payments between $20 and $800 to Wendy and all four children between August 2016 and April 2022. Though Elvis testified that these payments were for utilities and other bills, I can’t make that finding based on the receipts alone. There is no pattern to the amounts or dates that would support that finding. Wendy argued that Elvis’s lack of income (he reported no income for 2015, $3824 in 2016, $17,050 in 2017, and $16,884 in 2018) proved that he made no contribution to household expenses. I’m not prepared to draw that conclusion from Elvis’s tax returns—his reported income and his ability to contribute to expenses are two different things.
51There was some evidence at the hearing about whether Elvis contributed $10,000 towards the purchase of Delmonico Road. This evidence was unsubstantiated by any documents. It was largely hearsay. And, on the issue of the separation, it was irrelevant.
E. The Parties’ Behaviour
52As discussed above, I find Mr. Bofah’s and Mr. Jana’s evidence less credible than Ms. Ohunta’s and Ms. Currie’s testimony. As a result, it’s more likely than not that Elvis and Wendy never presented themselves as a couple after 2005 despite Mr. Bofah’s and Mr. Jana’s evidence. That they may have attended occasional social events together aligns with Wendy’s position that she allowed Elvis to stay at Delmonico Road in his capacity as her co-parent, not her spouse.
F. Other Factors
53I was provided no evidence of gifts or other tokens of affection. Though Wendy supported Elvis during his medical challenges, there was no evidence of him supporting her with respect to any extended family obligations or personal issues.
54Other than Jessica’s graduation in 2016, there is no evidence of Elvis celebrating special occasions with Wendy and the children—indeed Wendy is in none of the photos put into evidence by Elvis. There is no evidence of the children or anyone else ever referring to Wendy and Elvis as a couple. There is no evidence of Wendy and Elvis taking vacations together (in fact, the evidence is that Elvis travelled a lot but always alone).
55There is no evidence that the parties discussed family issues or communicated regularly (or at all) about family problems. Elvis testified that if he and Wendy disagreed over family-related matters, they would talk to their pastor or to Mr. Jana and his wife. But Elvis provided no particulars of when these discussions happened or what they were about.
56There is no evidence that Wendy had any expectations of Elvis regarding daily activities, such as chores or eating meals together.
VI. ORDER AND COSTS
57In Wendy’s Form 10: Answer, she pleads that the parties finally separated in Summer 2005. In her closing submission, she asks for a declaration that the date of separation is December 2004.
58Based on Wendy’s evidence, which I accept, I endorse an order that the date the spouses separated and there was no reasonable prospect that they would resume cohabitation is December 2004.
59Justice Emery’s endorsement directed that the focused hearing judge will set the date and terms of the Trial Management Conference. In March 2022, Justice Mandhane scheduled the Trial Management Conference for December 22, 2022, at 11am.
60The parties should attempt to resolve the issue of costs on their own. If they cannot do so, Wendy may file her costs submissions (three pages, double-spaced, one-inch margins), costs outline, and any offers to settle on or before December 23, 2022. Elvis may respond on or before January 13, 2023 (costs submissions of three pages, double-spaced, one-inch margins; costs outline; and any offers to settle). If I have received no submissions within these time limits, I will assume that the parties have resolved the issue and make no costs order.
61I am not seized.
Agarwal J.
Released: December 14, 2022, amended May 19, 2023
COURT FILE NO.: FS-18-0022-00
DATE: 2022 12 14, amended 2023 05 19
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Elvis Tetteh Mensah
Applicant
– and –
Wendy Akwele Agogo
Respondent
Amended REASONS FOR JUDGMENT
Agarwal J.
Released: December 14, 2022, amended May 19, 2023