Ontario Superior Court of Justice

COURT FILE NO.: FS-22-0192-00 DATE: 2023-07-10

B E T W E E N:

Warren Muir, Applicant M. Petryshyn, for the Applicant

• and -

Lucille Schaaf, Respondent E. Van Voort, for the Respondent

HEARD: May 24, 25, 2023, at Thunder Bay, Ontario BEFORE: Mr. Justice W.D. Newton

Reasons For Judgment

Overview

[1] The sole issue to be determined by this trial is whether the two unmarried parties were spouses prior to ending their relationship.

[2] Under section 29 the Family Law Act (“FLA”), the definition of spouses includes persons who are not married but have cohabited continuously for a period of not less than three years.

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

The Facts

[4] As directed by Fitzpatrick J., the parties were to file affidavits summarizing their evidence and the evidence of any other witnesses to be called. Each party was entitled to amplify their evidence subject to the discretion of the trial judge. In addition to the parties, an affidavit was filed by the respondent from Tuomas Minor, a landlord.

Tuomas Minor

[5] Mr. Minor is the landlord of 84 Elm Street, Thunder Bay. He received an application to rent a one-bedroom basement apartment. The application notes that the parties’ prior address was in Atikokan for 3 ½ years, in a company home. According to his affidavit, “they presented themselves to me as a friendly mature couple.” The residential tenancy agreement listed both parties as tenants and was signed by both on May 17, 2018.

[6] On May 1, 2021, the parties moved from the basement apartment to the main floor apartment and signed a new lease agreement. He deposed that, prior to signing the agreement, Mr. Muir requested that Ms. Schaaf’s name be crossed off because of “ongoing dealings with an ex-wife”. In his affidavit he said that the parties’ cohabitation continued until May 2022 when Mr. Muir moved out.

[7] He deposed that Mr. Muir paid the rent by e-transfer and provided a spreadsheet showing rent payments from Mr. Muir from May 18, 2018, to May 20, 2022, totaling $69,476. Commencing June 2022, Ms. Schaaf paid the rent.

[8] Mr. Minor also deposed that he attended the rental unit weekly between May 2018 and May 2022 and saw the parties together on numerous occasions, throughout their entire two tenancies. He believes that 84 Elm Street was the primary residence of both parties and that the occupation of both was continuous throughout this period.

[9] In cross-examination, he noted that he did not see Mr. Muir sign the application form. He admitted that he did not live at 84 Elm Street nor socialize with the parties. He would attend at the premises two to three times per month and would know when Mr. Muir was present when he saw his truck.

[10] In re-examination, he confirmed that he saw Mr. Muir in the premises after the second lease was signed. He confirmed that he was advised by Mr. Muir that he was ceasing to reside at the apartment in May 2022 and that Mr. Muir stopped residing there sometime in May 2022.

Lucille Schaaf

[11] In her affidavit, Ms. Schaaf stated that she and Mr. Muir began living together in June 2008 and separated in April 2022. She said that they first resided together in her apartment at 145 N. Hill Street in Thunder Bay and lived there for three years while Mr. Muir was renting out his Otto Street home.

[12] She said that they lived at Otto Street for approximately six months until Mr. Muir moved to Acton for work while she remained at Otto Street. She went briefly, for two weeks, to Fort McMurray and then stayed with Mr. Muir in Acton for a few months after which she returned to Otto Street. Because there was no heat or hot water at Otto Street, she moved to Red Lake to live with her brother and then eventually rented a room in another house. She admitted in her testimony that she had a brief affair while in Red Lake.

[13] After about six months, she relocated with Mr. Muir to 111 Mill Street East in Acton. They were evicted for nonpayment of rent after about five months. An offer of employment letter lists Ms. Schaaf address as 111 Mill Street.

[14] In November 2011 Mr. Muir brought an emergency application in the Superior Court of Justice in Milton seeking suspension of his child support obligations in Manitoba. In his affidavit sworn November 2, 2011, Mr. Muir stated:

I lost my house. My girlfriend and I tried desperately to save the house with no luck. We could not afford to go home and lost everything to my ex-wife all my and my girlfriend belongings she took… After all the stress my girlfriend had a minor stroke in September of this year and is not well.… My girlfriend quit her job to relocate with me down here and is unable to work at this time.

[15] The financial statement also sworn November 2, 2011, states that he is living with (person you are married to or cohabiting with) Ms. Schaaf.

[16] Medical documentation from October 2011 confirms that Ms. Schaaf was investigated for a stroke.

[17] However, Ms. Schaaf testified that she moved to Acton “towards the beginning of 2012… just after Christmas.” In cross-examination she said that Mr. Muir picked her up in January 2012 and then she moved to Acton.

[18] They then resided at a motel in Acton and then at 28 Church Street West in Acton. They were evicted from that apartment effective January 31, 2014. The order from the Landlord and Tenant Board lists both Mr. Muir and Ms. Schaaf as tenants. She testified that they lived at Church Street for approximately a year and one half to two years.

[19] After eviction they both lived with her parents temporarily. Ms. Schaaf then relocated to an apartment on 517 McBain Street in Thunder Bay. Mr. Muir was in Baffin Island at the time but would live with Ms. Schaaf on his days off. According to Ms. Schaaf, Mr. Muir paid all expenses.

[20] After McBain Street, they lived at the Kings Motel in Thunder Bay for about year. She testified that Mr. Muir lived with her “whenever he was home from out of town”. She also testified that she visited Mr. Muir at the company house in Atikokan “many, many times.”

[21] After that, they moved into the apartment on Elm Street where they resided from May 2018 until May 2022.

[22] In examination in chief, she said that Mr. Muir stopped residing with her at Elm Street:

probably January 2022. January to April 2022. It was sporadic that he could come home, and I yes didn’t – wasn’t certain what was going on until was confirmed by sister-in-law in April 2022 that he was having an affair with someone. So it ended – officially ended in April 2022.

[23] Documentation produced confirmed that Mr. Muir had Ms. Schaaf as a beneficiary under his extended health insurance in 2009, 2010, 2014, 2016, 2018, 2019, 2021 and 2022. Ms. Schaaf testified that whenever Mr. Muir had benefits through his employment, she was designated a beneficiary.

[24] In November 2020 Mr. Muir purchased and gave her a diamond ring. He had accompanied her to a medical appointment in Ottawa. She described the ring as an engagement ring.

[25] On July 12, 2021, Mr. Muir made an application to discontinue enforcement of child support to the Family Responsibility Office. In that application he confirmed his address as 84 Elm Street, Thunder Bay. He authorized Ms. Schaaf, “my common-law partner”, to speak to the FRO and listed Ms. Schaaf’s telephone number for contact.

[26] She testified that she was told in April 2022 that Mr. Muir was seeing someone else. She delivered a letter to Mr. Muir’s new partner in which she informed her that she and Mr. Muir had been “common law’ for over 14 years and that “he has been cheating and abusing me for years and he will not make me homeless ever. The courts have big plans for him.”

[27] She admitted in cross-examination that she completed the application for the Elm Street apartment and might have signed Mr. Muir’s name to the application.

Warren Muir

[28] In his affidavit, Mr. Muir stated that he and Ms. Schaaf had a “social and romantic relationship” but did not live together for three consecutive years. He described the relationship as “on again/off again” between December 2007 and April 2021 but that they resided together “with an intention to be in a relationship, only between the dates of June 2018 to January 2021.

[29] He said that he was involved in other romantic relationships that Ms. Schaaf was aware of. He said that they never held themselves out to others as a consistent couple.

[30] When Ms. Schaaf was staying at the Kings Motel, Mr. Muir was working “21 days out, four days in”. He testified that he stayed with her at the Kings Motel “the odd night”.

[31] He admitted that he moved into the apartment at 84 Elm Street “from the end of May 2018 until our relationship essentially petered out near the end of 2020.” “It was sometime in May we started living together on Elm Street… as boyfriend/girlfriend.” He deposed that “after approximately January 2021” he did not sleep at the apartment.

[32] He testified that he signed the new lease in his name alone in May 2021 so he could have control over the lease agreement because he was helping Ms. Schaaf out with her plans for a “B +B”.

[33] In his application filed in this court, Mr. Muir stated that the parties “lived in a common law relationship since the first day of June 2018” and “separated on April 30, 2021”.

[34] In cross-examination, he acknowledged that he was living in Elm Street with Ms. Schaaf from May of the 2018 and admitted signing the lease.

[35] In his testimony, he said that he added Ms. Schaaf to his extended health insurance through work and said that he was told that they did not have to be living “common-law” or under the same roof to qualify. When they were no longer living together, he took her off his benefits. According to the pharmacy records Ms. Schaaf had insurance coverage until August 2022.

[36] He admitted that he paid the rent when Ms. Schaaf lived on McBain Street, while she stayed at the Kings’s Motel, while she lived at Ms. Bodnar’s place for six or seven months, and at 84 Elm Street. He also allowed her to live rent free in his house on Otto Street.

[37] He denied that he ever proposed to Ms. Schaaf and said that he bought her a diamond ring in November 2020 to make her feel better after she was diagnosed with a serious medical condition.

[38] He testified that, in March 2021, the relationship was “basically” over and that he lived at his mother’s house or at his girlfriends.

[39] Ms. Schaaf had a credit card which she used to pay for groceries. He described the “deal” as “we will use your credit card to pay for the groceries and I’ll keep on paying the rent.”

[40] He denied that Ms. Schaaf was living with him in November 2011, when he swore the affidavit and made that statement that she was, because he was “looking for a bleeding heart from the judge.”

[41] With respect to his application to the Family Responsibility Office in July 2021 he described Ms. Schaaf as his common-law spouse “to sound better” so they would deal with her. He testified that in July 2021 he was living with his new girlfriend while he told FRO that he was living at Elm Street.

The Law

[42] The parties generally agree on the applicable legal principles.

[43] A decision from the late Kurisko J., Molodowich v. Penttinen has been widely cited on the factors to be considered in determining whether a conjugal relationship exists.

[44] Justice Karakatsanis (as she then was) summarized the criteria from Molodowich in her decision in Campbell v. Szoke as follows:

Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), at 381-382 has set out a non-exhaustive list of criteria to be considered in determining whether a conjugal relationship exists. Elements to consider include shared shelter, sexual and personal behaviour, services, social activities, economic support, children as well as the societal perception of the couple. These were confirmed as generally accepted characteristics of a conjugal relationship by the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3 (S.C.C.). (para. 59). However, it is recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be conjugal. [Underline added.]

[45] One party's perception of the nature of cohabitation or whether the parties are spouses is not necessarily determinative of whether the parties come within the statutory definition (Haughton v Corner, 2022 ONSC 869) and often “objective contemporaneous evidence is more probative of the nature of the parties' relationship than the viva voce evidence of the parties in the midst of acrimonious and bitter proceedings (Macmillan-Dekker v. Dekker, [2000] O.J. No. 2957 at 22).”

Discussion

[46] The reliability of both parties with respect to their past place of residence and cohabitation is suspect given the passage of time and the lack of documentary evidence. There is documentary evidence that they were tenants together in 2014 and cohabiting in 2011 but little else of assistance.

[47] The credibility of Mr. Muir with respect to recent cohabitation is very suspect. He described the cohabitation at Elm Street as ending as in January 2021, March 2021, and April 2021, just prior to the expiration of three years. He told the FRO that he was living at Elm Street in July 2021 and that Ms. Schaaf was his common-law spouse. He told the Superior Court of Justice in Milton in November 2011 that he was cohabiting with Ms. Schaaf. In his testimony to me, he said his statement to the FRO in 2021 and to the court in 2011 were not true. The landlord at Elm said he was told by Mr. Muir that he was moving out in May 2022. When it comes to evidence of recent cohabitation, I do not accept the evidence of Mr Muir. I find that he tailors his evidence to suit his present purposes.

[48] When in conflict, I accept the evidence of Ms. Schaaf. She said that Mr. Muir stopped residing with her “probably January 2022, January to April 2022.” This is consistent with the landlord’s evidence. It is not disputed that they began cohabiting at Elm Street in May 2018. Therefore, I find that they resided at Elm Street together for at least three years.

[49] Mr. Muir admitted that he paid rent at Elm Street from May 2018 to May 2022, I find this admission supports Ms. Schaaf’s evidence that the cohabitation ended January 2022 to April 2022.

[50] In addition to paying rent, while he had benefits, Ms. Schaaf was a beneficiary under Mr. Muir’s extended health insurance for 2009, 2010, 2014, 2016, 2018, 2019, 2021 and 2022 to August. The fact Ms. Muir was taken off his benefits in August 2022 is more consisted with the relationship ending in 2022 and not 2021 as alleged by Mr. Muir. I do not accept Mr. Muir’s assertion that he could add Ms. Muir to his benefits if there were not living together.

[51] Mr. Muir also admitted that he paid the rent at the King’s Motel and I accept Ms. Schaaf’s evidence that this was for at least one year prior to moving to Elm Street. Mr. Muir also admitted paying the rent at McBain Street while he worked on Baffin Island in around 2015 and at Ms. Bodnar’s place. I am satisfied that, on the evidence, while Mr. Muir worked out of town at different locations, he resided with Ms. Schaaf as his “home base”. I do not accept his evidence that he lived with his mother.

[52] I draw an adverse inference from Mr. Muir’s failure to call any other witnesses to support his claims given my assessment of his credibility. I disregard the email from Ms. Bodnar attached as an exhibit to Mr. Muir’s affidavit. If it was intended that this information was to be relied upon, an affidavit was required, and she should have been produced for cross-examination.

[53] According to the landlord at Elm Street, they presented as a mature couple. Mr. Muir represented to the court in 2011 that they were cohabiting and to the FRO that Ms. Schaaf was his common law spouse in July 2021.

[54] I am satisfied that Ms. Schaaf grocery shopped and made meals for them as a couple and for Mr. Muir to take with him when he worked out of town. As I stated, I am satisfied that wherever Ms. Schaaf resided, particularly while he paid the rent, was his “home base”.

[55] He purchased her a diamond ring, not another piece of jewelry, in November 2020. He accompanied her to a serious medical appointment.

[56] There was one occasion when Mr. Schaaf was not monogamous about 10 years before they ceased living together but I am satisfied that after that relationship they resided together. With respect to the note written by Ms. Schaaf to Mr. Muir’s current partner referencing Mr. Muir’s “cheating” I do not find this determinative as to whether they were spouses during the relevant time period.

[57] Considering the Molodowich factors and recognizing that all the factors may be present in varying degrees and that not all are necessary, I am satisfied that Ms. Schaaf and Mr. Muir were spouses as defined by the FLA. I find that they were spouses from sometime in 2015/2016 to early 2022.

Next Stages

[58] If the parties are not able to agree on the quantum of support, they are to arrange a further trial management conference before me to discuss how the trial should proceed.

[59] At a minimum, each party is to deliver an updated financial statement along with income tax returns and notices of assessment from 2018 to present.

“Original signed by” The Hon. Mr. Justice W.D. Newton

Released: July 10, 2023