Court File and Parties
NEWMARKET COURT FILE NO.: FC-21-1325-00 DATE: 20230519 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Renee Lynn Tobias, Applicant AND: Jon Albert Franke, Respondent
BEFORE: The Honourable Mr. Justice G.A. MacPherson
COUNSEL: Applicant – Self-represented J. Stankiewicz, Counsel for the Respondent
HEARD: May 15, 2023
Ruling on Motion
Relief Requested
[1] The Respondent brings a motion requesting an Order:
(a) that the Applicant’s spousal support claim be dismissed; (b) that the issue of ‘standing’ in relation to spousal support be determined in accordance with Subrule 16 (12) (a) of the Family Law Rules; (c) in the alternative to (a) and (b) that the issue of spousal support be bifurcated and scheduled for trial; (d) that the Applicant pay into court security for costs; and (e) in the alternative to (d) that the Applicant post security for costs.
[2] The Applicant brings a cross-motion requesting an Order that the Respondent pay her:
(a) interim disbursements in the amount of $100,000 pursuant to Subrule 24 (12) of the Family Law Rules.
Adjournment Request
[3] At the commencement of the motion, the Applicant requested an adjournment of the motion and cross-motion on the basis that she is unrepresented, requires counsel, and because she was unaware that the motion would be proceeding in May 2023.
[4] The adjournment request is dismissed for the following reasons:
(a) the Applicant was represented by counsel throughout the proceedings until February 27, 2023 when Mr. Stangarone requested an Order that he be removed as counsel of record; (b) the Applicant has filed her evidence and has had, since February 27, 2023, ample time to obtain alternate counsel; (c) this motion was scheduled to proceed during the November 2022 trial sittings and was one of eight long motions that was not reached and traversed to the May 2023 sittings in priority; (d) both parties were well aware that this matter was proceeding during the May 2023 trial sittings; (e) the Applicant had every opportunity to complete questioning on the many dates that were scheduled and then cancelled by her then counsel including: October 17, 2023, October 24, 2023 and November 18, 2023; (f) both parties have, collectively, filed hundreds of pages of materials for this motion. The Applicant, alone, filed in excess of 500 pages of materials in support of her position and a full court day was set aside for argument; (g) an adjournment would otherwise delay this matter, which has been outstanding for two years, as long motions are only heard in May and November each year. It is noteworthy that the Application was commenced as an urgent motion by the Applicant; and (h) the court has a duty to manage court resources while taking into account the need to give resources to other cases.
Brief Background
[5] The parties are citizens of the United States.
Applicant
[6] The Applicant is a student in the joint Bachelor/Masters program in psychology at Harvard University. She is obtaining her degree through their distant learning program.
[7] The Applicant was married to Eric Tobias from September 5, 1992 through January 2014. The Applicant has two children from the marriage with Mr. Tobias namely, Alex Tobias and Paige Tobias. Both children are adults.
[8] The Applicant was in matrimonial litigation with Mr. Tobias from 2014 through 2019 (evidence of the Applicant) or 2020 (evidence of Mr. Tobias).
Respondent
[9] The Respondent has a Bachelor of Science, Masters of Science in Mechanical Engineering and a Masters of Business Administration.
[10] The Respondent was married to Ms. Rebecca Franke from November 18, 1989 through April 5, 2013 when they separated. The Respondent and Ms. Franke have three children together. All children are now adults and living independently.
[11] The Respondent worked at the Susquehanna Nuclear power Plant located in Berwick, Pennsylvania from 2014 – 2016. During his employment he resided in Harveys Lake, Pennsylvania.
[12] From 2017 until July 1, 2019 the Respondent was employed by Pacific Gas and Electric in California. The Respondent relocated to California for this position.
[13] In June 2020 the Respondent moved to Canada after accepting a position with Ontario Power Generation Ltd. to work at the Pickering Nuclear Power Plant. He continues to work in this position.
Is the Applicant a Spouse Pursuant to Section 29 of the Family Law Act?
[14] The first issue to be addressed is the issue of standing.
[15] The Applicant advances the position that she is a spouse pursuant to the definition set out in section 29 of the Family Law Act.
[16] The Respondent advances the position that the Applicant is not a spouse pursuant to the definition set out in section 29 of the Family Law Act.
[17] In the event that the Applicant does not meet the definition of spouse as set out in the Family Law Act, her motion for interim disbursements and the balance of the Respondent’s motion will be dismissed. In the event that the Applicant does meet the definition of spouse, the issue of interim disbursements and the balance of the Respondent’s motion will be considered.
Relationship
[18] The parties were never married one to the other.
[19] The parties have no children together.
[20] The length and nature of their relationship is in dispute.
Applicant’s Position
[21] The Applicant states that the parties were in a common-law relationship for 6 ½ years commencing in 2014 when both parties resided in Pennsylvania.
[22] The Applicant states that she relocated to California from Pennsylvania with the Respondent on January 15, 2017.
[23] The Applicant states that she and the Respondent relocated from California to Canada in June 2020.
[24] It is noteworthy that the Applicant currently resides in California where she has also made claims against the Respondent for spousal support, a restraining Order and property.
[25] The Applicant states that the relationship terminated on February 28, 2021.
Respondent’s Position
[26] The Respondent states that the parties met on a dating website in July 2014 and the parties met in person for the first time in September 2014.
[27] At the time the parties met, the Respondent lived in Harveys Lake, Pennsylvania. The Applicant lived in Blandon, Pennsylvania.
[28] The Respondent states that the parties never resided together in Pennsylvania. The Respondent states that the geographic distance between the two homes was 104 miles – over two hours by car – making cohabitation impractical. Rather, he says, the parties were dating until 2019.
[29] The Respondent relocated to California in January 2017. The Respondent states that the parties continued to date. However, the Applicant remained in Pennsylvania operating a hair salon and looking after her son who was living in her full-time care.
[30] The Respondent states that he and the Applicant first commenced cohabitation on May 15, 2019 when the Applicant relocated from Pennsylvania to California.
[31] The Respondent states that the parties separated February 27, 2021, after a cohabitation period of one year, nine months.
Law
[32] The governing legislation is found in section 29 of the Family Law Act which defines a spouse as follows:
“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, or (b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act. (“conjoint”) R.S.O. 1990, c. F.3, s. 29 ; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6); 2009, c. 11, s. 30 ; 2016, c. 23, s. 47 (1) .
[33] Section 1 (1) of the Family Law Act defines ‘cohabit’ as living together in a conjugal relationship, whether within or outside of marriage.
[34] The Applicant states that the parties meet the definition of spouse as defined in the governing legislation as they cohabited from 2014 through 2021 or, in the alternative, that despite having separate residences for much of this time, the parties still meet the definition of spouse.
[35] The Respondent states that the parties do not meet the definition of spouse as defined in the governing legislation as they only cohabited from May 2019 through February 2021 and that prior to May 2019, they were simply dating.
Summary Judgment
[36] The Respondent requests that this matter be determined in a summary way as there is no triable issue or, in the alternative, if there is a triable issue, the legal issue can be determined summarily.
[37] As set out in Rules 16(1) and (6) of the Family Law Rules, O. Reg. 114/99, as amended, a court may dismiss all or part of a claim on the basis that there is no genuine issue requiring a trial:
16(1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.
16(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.
[38] Rule 16 (6.1) of the Family Law Rules now permits the court to weigh evidence, evaluate credibility, draw reasonable inferences, and order oral evidence by way of a mini trial, if necessary.
[39] In Hryniak v. Hryniak, 2014 SCC 7, the Supreme Court of Canada set out a two-step approach to determining whether a genuine issue for trial exists, and when to exercise the expanded powers afforded by Rule 16:
The motions judge must first determine whether there is a genuine issue requiring a trial based only on the evidence before her, without recourse to the new fact-finding powers. Where this exercise provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, there will be no genuine issue requiring a trial and summary judgment must be granted.
If there appears to be a genuine issue requiring a trial based on the record before the judge, she should then determine whether the need for a trial can be avoided by exercising her discretion to weigh evidence, evaluate credibility, draw inferences, and hear oral evidence to achieve a fair and just result that will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[40] The Court went on to find in Hryniak, supra, at paras 5 and 50 that summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. The standard of fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.
[41] Rule 16 must be applied in light of Rule 2(2) of the Family Law Rules, which provides that the primary objective of the Rules is to ensure that cases are dealt with justly, that the procedure is fair to all parties, saving time and expense, and dealing with the case in ways that are appropriate to its importance and complexity, giving appropriate resources.
[42] The onus is on the moving party to demonstrate that there is no genuine issue requiring a trial. The phrase "genuine issue" has been interpreted by the courts in a number of ways. "Genuine" implies the issue is real and authentic, not spurious. It must also be substantial and of sufficient importance to warrant a judicial determination. No genuine issue requiring a trial will exist where the result would be a foregone conclusion or there is "no realistic possibility of an outcome other than that as sought by the applicant." See: Children's Aid Society of Algoma v. W.(E.), [2001] O.J. No. 2746, at para 15, and Correa, supra, at para 21.
[43] Once the moving party has made a prima facie case, the evidentiary burden shifts to the responding party, who must lead evidence of specific facts showing there is a genuine issue for trial. This “enables the motions judge to assess... whether he or she is confident that the factual record provides the evidence required by the court to take a good hard look at whether the claim or defence can be adjudicated justly without requiring a trial.” See: Turk v. Turk, 2015 ONSC 5845 (S.C.J.), at para 47.
[44] The responding party must put his "best foot forward" by providing detailed responses to the pertinent factual allegations before the court and cannot rest on bald assertions or denials. As Jones J. noted in Children's Aid Society of Toronto v. T. (K.), [2000] O.J. No. 4736 (O.C.J.), at para 10:
In order successfully to winnow out cases that do not require a trial, a court must have before it a full evidentiary record. If the moving party were to present a prima facie case for summary judgment to the court, only to be defeated by mere allegations or denials by a responding party, the rule would have no teeth. In order to have a useful and effective summary judgment rule, the responding party, faced with a prima facie case for summary judgment, must provide evidence of specific facts showing that there is a genuine issue for trial or risk losing. Mere allegations or blanket denials, or self-serving affidavits not supported by specific facts showing that there is a genuine issue for trial must be insufficient to defeat a claim for summary judgment in such cases.
See: Rule 16(4.1) of the Family Law Rules.
Analysis
Summary Judgment
[45] I am satisfied, on the evidence before me, that there is a triable legal issue. The issue to be tried is whether or not the Applicant meets the definition of ‘spouse.’
[46] I am also satisfied, on the evidence before me, that the court can determine the threshold issue on the evidence filed without the necessity of a trial.
[47] Collectively the parties have filed extensive materials totalling hundreds of pages of narrative with significant objective evidence. The evidence filed was more than sufficient for the court to determine the threshold legal issue as is set out below.
Is the Applicant a Spouse as Defined in Section 29 of the Family Law Act?
[48] Both parties agree that the relationship terminated February 28, 2021. The commencement of cohabitation, therefore, will assist the court determine if the Applicant meets the definition of spouse.
Lease of 100 North Park Road, Pennsylvania
[49] The Applicant offers as evidence that the parties cohabited since 2014, confirmation of a signed lease for 100 North Park Road, Pennsylvania. The evidence presented by the Applicant does not include a lease. There is confirmation that both parties executed a document in respect of this property. The Applicant states that both parties were lease holders. The Respondent states that he was simply a guarantor. A copy of the lease might have assisted but it was not filed with the court.
[50] The Respondent states that he co-signed the residential lease application out of kindness because they were dating but he never resided with the Applicant at 100 North Park Road, Pennsylvania. The execution of a lease, as a leaseholder or guarantor, would not in and of itself be sufficient evidence of cohabitation as the Respondent did reside at Harveys Lake.
[51] It is noteworthy that the Applicant remained living in the matrimonial home she had with Mr. Tobias until it was sold on November 28, 2016. There was no evidence advanced to suggest that the Respondent ever resided in that property.
[52] In December 2016 the Respondent moved into a rental apartment at 100 North Park Road. The Applicant, however, states that the parties were cohabiting since 2014. The Applicant states that she was able to commute from the Respondent’s home at Harveys Lake (between 1 ½ hours – 2 hours each way) and that was not uncommon for people who lived at Harveys Lake. The Applicant fails to explain why she rented 100 North Park Road if she was cohabiting with the Respondent at Harveys Lake and the commute was manageable.
[53] The Applicant also states that she spent almost every weekend at Harveys Lake. This is inconsistent with the totality of the evidence. The affidavit of Jerry Brown sworn September 21, 2022 is persuasive. Mr. Brown was a contractor renovating the Harveys Lake property. He testified that he was at the property in 2015 virtually any day of the week including Saturday and Sunday and he met the Applicant perhaps twice during the year he completed renovations. His evidence included: “It was clear to me that Ms. Tobias did not live at the home, and she did not spend time there, as she was never there. There were no women’s clothing in the closets and/or bathroom. I spent long hours at the home and only remember her visiting the home on a weekend or two over the course of a year.”
[54] Michael Liuzzi swore an affidavit August 10, 2022. Mr. Liuzzi describes himself as a “direct neighbour of the Respondent at Harveys Lake.” Mr Liuzzi is a retired doctor of pulmonary medicine and knew the Respondent since 2014 when the property was purchased. His evidence was that he saw the Respondent and Applicant only a handful of times together prior to the Respondent’s move to California. His evidence also indicated that he shared a driveway with the Respondent and “It was very rare to see Renee or her car at the house since I met her.” He states further: “Renee did not reside at Jon’s residence, and she did not cohabit with Jon.”
[55] Curiously, as will be discussed further below, when the Respondent relocated from Pennsylvania to California the Respondent’s address on the change of address was listed as Harveys Lake. The Applicant also filed a change of address from Pennsylvania to California and she listed her address at 100 North Park Road.
[56] I accept the evidence of the Respondent that in 2015 and 2016 he continued to reside at Harveys Lake, Pennsylvania while the Respondent resided at 100 North Park Road, Wyomissing, Pennsylvania. I reach this conclusion because it is consistent with the totality of the evidence contained in the numerous affidavits filed by third parties; because, as a practical matter, the geographical distance between the properties and the parties’ respective work made a daily commute impractical; and the objective and compelling evidence filed that demonstrates the parties had different residences until 2019.
Relocation to California
[57] There is no dispute that the Respondent moved from Pennsylvania to California in January 2017.
[58] Michael Liuzzi provided evidence that the Applicant did not move to California when the Respondent moved. Rather he provided evidence that the Applicant remained in Pennsylvania and would drive in from Reading Pennsylvania from time to time when the Respondent returned to Harveys Lake from California. His evidence included that his wife continued getting her hair cut with the Applicant in Pennsylvania well after the Respondent moved to California and “for quite some time.”
[59] It is noteworthy that both parties indicated their mail should be re-routed to California in January 2017. The notification form from the US postal service indicates that all of the Respondent’s mail would be forwarded to California effective January 20, 2017 as he was moving permanently. The Applicant’s change of address is curious. It does not indicate there is a permanent move. Further, the Applicant’s standard mail and catalogues were not to be forwarded. First class mail and packages were to be forwarded but the change in address had an expiration date of January 2018. When asked, the Applicant was unable to provide any explanation for the discrepancy between the two change of address forms.
[60] Although the Applicant states that she also relocated to California on January 15, 2017, she states that she maintained her salon in Pennsylvania and would commute from California for scheduled clients. The evidence was clear that the Applicant was the sole owner and operator of the salon. When asked, in questioning, if there were any individuals that assisted in the management of the salon in her absence, the Applicant would not answer the question.
[61] In addition to her work, the Applicant also maintained her apartment in Pennsylvania so that she could check on the salon. The Applicant provided no supporting evidence of regular flights from California to Pennsylvania and back during 2017 and 2018. This evidence should have been readily available. Further, the Applicant had custody of her son Alex. He resided with her. The Applicant received child support for Alex. Alex did not move to California.
Income Tax returns
[62] The Applicant’s personal Income Tax Returns indicate she was living and working at her own salon in Pennsylvania in 2017. This is contrary to her statement that she moved to California in January 2017. Despite a court Order that the Applicant disclose her personal Income Tax Returns for the taxation years 2018 and 2019, the Applicant has not done so. I draw a negative inference as this objective information would be readily available to the Applicant, would have indicated where she filed taxes and, despite a court Order, she did not provide them.
Testimony in Tobias and Tobias
[63] Mr. Tobias, the Applicant’s former spouse, provided evidence that during his litigation with the Applicant (which ended in 2019 or 2020), the Applicant maintained that she was not cohabiting with anyone (other than her son Alex). Cohabiting in a relationship with another person would have disentitled the Applicant to spousal support pursuant to Pennsylvania law. The Applicant provided sworn testimony in Pennsylvania that she was not cohabiting with anyone (other than her son Alex) at multiple times in her litigation. The spousal support obligation of Mr. Tobias did not end until August 27, 2019.
[64] In her sworn testimony September 26, 2017 in the Pennsylvania proceeding with Mr. Tobias, the Applicant testified that she lived in Pennsylvania with her son and did not reside with anyone else. She further testified that she was responsible for all expenses. This sworn testimony was provided to the Pennsylvania court nine months after she now states she relocated to California. This is yet another significant inconsistency.
[65] In December 2017, in the proceedings with Mr. Tobias, Master Shucker of the Court of Common Pleas in Berks County, Pennsylvania made findings of fact including that the child Alex was in the full-time care of the Applicant, that the Applicant lived at 100 North Park Road, Pennsylvania, and that the Applicant worked at her own salon. What is missing in the detailed facts found by Master Shucker is any mention of the Respondent and there is no mention of the Applicant’s alleged move to California 12 months previously.
[66] During testimony in the proceedings with Mr. Tobias the Applicant identified that she was solely responsible for all of her expenses. The Applicant did not mention any expenses in California and did not mention the ‘financial integration’ she now claims she had with the Respondent. This is inconsistent with her current position.
[67] It is noteworthy that the Applicant refused to provide evidence of when she notified the Pennsylvania Domestic Relations Office (similar to Ontario’s Family Responsibility Office) of her change of address. I draw an adverse inference from that refusal.
[68] It is clear to the court that the Applicant was either untruthful in the Pennsylvania proceedings or she is being untruthful now.
Pennsylvania Driver’s Licence
[69] The Applicant had a driver’s license in Pennsylvania from 2015 through to its expiry on April 12, 2018.
[70] The Applicant renewed her driver’s licence in 2019 in Pennsylvania indicating her address was 100 N Park Drive Blandon, Pennsylvania.
[71] The Applicant did not obtain her California driver’s licence until August 31, 2020.
[72] This is yet another indication that the Applicant remained in Pennsylvania.
Other Connections to Pennsylvania
[73] The Applicant had utility bills in her name in Pennsylvania in 2019.
[74] The Applicant continued to work in her salon in Pennsylvania until she closed her salon at the end of February 2019.
[75] Pursuant to the disclosure provided by the Applicant, including her bank statements, for the period January 1, 2019 through May 15, 2019, most of the daily transactions noted in her bank account took place in Pennsylvania with only a handful of entries in California.
[76] According to her credit card information, the Applicant made only a handful of purchases in California in 2018.
Engagement
[77] The Applicant’s evidence of her engagement is a moving target, depending on which of her sworn affidavits is relied upon. On the one hand she states that at Christmas 2016 she was presented with a ring from the Respondent “as a token of our commitment to one another.” In another affidavit she refers to the 2016 ring as an engagement ring.
[78] In her September 9, 2022 affidavit she states that the parties did not get engaged until 2019 because she wanted to wait until she got divorced. The divorce decree was finalized August 27, 2019.
[79] The Respondent, by contrast, states that the parties became engaged in June 2020.
[80] I am satisfied that the parties became engaged in June 2020. The Applicant’s evidence was inconsistent. In addition, the parties received numerous congratulations on their nuptials in 2020. There was no evidence of congratulations for such a significant event in 2016 or 2019. Indeed, the Applicant’s own general evidence is inconsistent with 2016 being the engagement date where she states: “During the early years of our relationship, the Respondent called me his girlfriend because we were not formally engaged and he could not call me his fiancé, but we were very much in a serious relationship.”
[81] The Applicant conceded in submissions before this court that the actual engagement was in 2020. She did not explain the inconsistency of her previous statements.
Statutory Declaration
[82] The parties did move to Ontario. As U.S. citizens, the parties had to sign a Statutory Declaration of Common Law Union for Canadian Immigration law purposes. In this sworn document the parties deposed that they commenced cohabitation on May 19, 2019, consistent with the Respondent’s evidence.
[83] The Applicant acknowledges signing a statutory declaration but, despite the contents, states that it was hastily presented to her and she states she did not have opportunity to review it carefully. A review of the statutory declaration filed in evidence shows a document that is simple to read and easy to understand.
[84] The Applicant makes several broad stroke explanations for inconsistent evidence like the signing of the statutory declaration. For example, the Applicant states that her signature on a document signed in the U.S. called an Agreement Amongst Co-Owners was signed under duress although she had counsel at the time and signed the document under oath.
Bank Statements
[85] The Applicant’s debit card transactions and credit card purchases were all primarily in Pennsylvania prior to May 2019.
[86] The Applicant provided no evidence of bank accounts in California before 2019. The Applicant provided no evidence her car was registered in California before 2019.
[87] For all of the reasons aforementioned, I find that the parties did not cohabit in a residence continuously for a period of three years.
Is the fact that the Parties Maintained Separate Residences Until May 2019 the End of the Inquiry?
[88] [Climans v Latner, 15 O.R. (3d) 369] confirms that there may be cases where parties maintain separate residences but could still be considered spouses under the Family Law Act definition of spouse. This case is very different from Climans v. Latner. In Climans, the parties were in a relationship that spanned 13 years; spent enormous amounts of time together; represented themselves as spouses; and Mr. Latner supported Ms. Climans financially ($5,000 - $6,000 per month) from 2001 through 2015.
[89] In determining whether the parties cohabited while living in separate residences, I have considered the factors set out in Molodowich v. Penttinen, 17 RFL, 2d 376.
Sexual and Personal Considerations
[90] The totality of the evidence, from many deponents, indicates that the parties were not, prior to May 2019, in an exclusive relationship. The Applicant was asked to provide correspondence from the dating websites she was on and she refused to do so. I draw an adverse inference.
[91] The parties took only a handful of trips together, on average once a year.
[92] The affidavit evidence was overwhelming that the parties did not represent themselves as a committed couple prior to 2019. Indeed, from 2017 through 2019 the parties lived on opposite sides of the United States.
[93] There is no evidence that the parties purchased gifts for each other before May 2019. The Applicant does allege that the Respondent’s Lexus was gifted to her. The Respondent denies the suggestion. I do not accept the Applicant’s evidence that the Lexus was a gift from the Respondent to her. When purchased, the Lexus was registered in the Respondent’s name only. When the Respondent relocated to California, the Respondent registered the Lexus in his name alone. When the Respondent relocated from California to Canada he, again, registered the Lexus in his name alone. The registration alone is evidence that there was no gift but, even if there was an offer of a gift, the third element of a gift, delivery, is not present.
Resource Sharing
[94] Prior to May 2019 the parties did not share their resources. The Applicant had no access to the Respondent’s bank accounts and vice versa. The parties separated February 28, 2021 while living in Ontario. The police report of the same date is independent evidence that the Applicant was not added to the Respondent’s bank accounts in Pennsylvania or California.
[95] There is no persuasive evidence the parties completed domestic chores for each other.
Children
[96] The parties did not integrate their children into their lives. The Respondent did not have a relationship with the Applicant’s children and the Applicant did not have a relationship with the Respondent’s children. Indeed, the Respondent states that the Applicant did not even want his children to attend their nuptials.
Credibility Issues
[97] The Applicant advanced claims in the California litigation in family court against the Respondent on Feb. 25, 2022 when she requested a restraining Order and spousal support.
[98] The Applicant stated in her affidavit sworn June 24, 2022 for this proceeding that she did not seek spousal support in California.
[99] The Applicant states that she did not dispose of any of the Respondent’s assets despite clear evidence she did. The Applicant received a cheque for $3,074 from MaxSold the day before she attended a Case Conference in this court which has the address 93 Marbrook Street, Richmond Hill and her name on the cheque.
[100] The Applicant’s evidence regarding her engagement is inconsistent.
[101] The Applicant’s evidence regarding her move to California defies logic. Who would move and leave a teenager in an apartment on the other side of the country alone? Who would commute to work from California to Pennsylvania and have no records of flights?
[102] The Applicant’s explanation that she signed the sworn statutory declaration of the dates the parties cohabited in order to enter Canada is not believable.
[103] The court has serious issues with the Applicant’s credibility. In particular the Applicant has filed much inconsistent evidence; has not filed evidence that should be readily available (including flights to commute between Pennsylvania and California); and advances a position in this litigation that is contrary to her evidence sworn in proceedings in the U.S. For all of these reasons the court favours the Respondent’s evidence in areas where there is a dispute.
[104] It is of note that the California courts, specifically Hearing Officer Kleinfelter and Justice Erin M. Childs, expressed concerns regarding the Applicant’s credibility in the proceedings in the United States.
[105] For all of these reasons, I find that the Applicant and the Respondent were not spouses pursuant to the definition of spouse contained in the Family Law Act because they did not cohabit for a period of three years based on the following findings of fact:
(a) the parties were engaged for only 1 year and 3 months; (b) the parties cohabited for only 1 year and 9 months; (c) the parties did not intermingle their finances before May 2019; (d) the parties did not spend every weekend together before May 2019; (e) the parties did not hold themselves out as a couple before May 2019; (f) the relationship did not have dependency characteristics, save and except for the period June 2020 – February 2021; (g) the Applicant did not contribute to the Respondent’s financial success; and (h) the parties did not behave like a couple that was committed.
[106] This was a relationship of relatively short duration. The parties dated from 2014 through 2019. The parties moved in together in 2019. The parties became engaged in 2020. The engagement broke off in February 2021.
[107] The evidence is overwhelming that the Applicant does not meet the definition of spouse set out in the Family Law Act and the court is able to make this finding on the affidavit evidence filed such that a trial is not required.
Order
- The Respondent’s motion is granted.
- The Application is dismissed as the Applicant does not meet the definition of spouse contained in the Family Law Act.
- The Applicant’s request for a disbursement of $100,000 to fund her litigation is dismissed.
- If the parties cannot agree on the issue of costs regarding this motion, I shall consider the request for costs. The Respondent shall serve on the Applicant and file electronically, through the Trial Coordinator, written submissions, limited to five pages, exclusive of the Bill of Costs and Offers to Settle within 20 days of the date of this decision. The Applicant shall serve on the Respondent and file electronically, through the Trial Coordinator, written submissions, limited to five pages exclusive of the Bill of Costs and Offers to Settle within 10 days thereafter. There shall be no right of Reply.
Justice G.A. MacPherson Date: May 19, 2023