Court File and Parties

COURT FILE NO.: 1320/16 DATE: 2023/07/25

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Tracy Lee Brennan Applicant

Peter Eberlie, for the Applicant

- and -

Geoffrey Henry Fournie Respondent

Kimberly Doucett, for the Respondent

HEARD AT LONDON: March 13 to 17, 21 to 24, April 3 to 6 and April 13, 14, 2023

Supplementary Reasons for Judgment

Aston J.

[1] One of the issues in this case is the length of the period of cohabitation.

[2] Ms. Brennan says cohabitation began January 1 1992 a date acknowledged in the spring of 2015 in sworn statutory declarations prepared in support of her application for a U.K. work permit. Mr. Fournie’s position is that cohabitation only started in May 1995, when Ms. Brennan moved to the U.K and they shared a common address for the first time.

[3] I addressed this dispute in paragraphs 62 – 71 of the reasons for judgment released July 13, 2023. (Brennan v. Fournie, 2023 ONSC 4130) At paragraph 69 I concluded that “though the evidence might support a finding that cohabitation began before the fall of 1994, it is not necessary to go that far. In the context of Ms. Brennan’s spousal support claim, it hardly matters whether the relationship was 21 and a half years or 24 years.”

[4] On further reflection, there actually is a small difference when it comes to the time after child support ended for Sydney last August. The difference has to do with the way the Spousal Support Advisory Guidelines (SSAG) generate a range for spousal support. So long as there is an obligation to pay both child support and spousal support, the SSAG “with child support” formula is based on a sharing of net disposable income. The spousal support component does not change based upon the length of the spousal relationship. However, once there is no child support component, the SSAG formula for “without children” is not based on a sharing of net disposable income. Instead, it is based on two factors: income disparity and the length of the relationship.

[5] Thus, in this case, there is a difference in the SSAG range after child support ended in August 2022 based on whether the length of cohabitation is 21 and a half years or 24 years. It is not a large difference, but because the judgment of July 13 adopted the SSAG range, specifically the mid-point of the SSAG range, I now find it advisable to clarify my determination of when cohabitation started.

[6] In paragraph 64 I found that “the latest date cohabitation began is late in the fall of 1994, when Ms. Brennan agreed to leave her employment with 3M Canada and accepted Mr. Fournie’s invitation to move to Europe”. I now make the specific finding that cohabitation began in October or November 1994.

[7] The evidence in support of an earlier date merely proves an intention to become spouses at some indefinite future date. However, it falls short of proving a commitment to spousal status. The decision by Mr. Fournie to ask Ms. Brennan to leave her job, sell her home and move in with him on the other side of the Atlantic Ocean, together with her acceptance of his invitation, took their relationship to a different level. They both unequivocally made a long-term commitment to one another.

[8] I therefore make the specific finding that what I described as “the latest date” cohabitation began is in fact the date it did begin. It follows that the length of cohabitation is 21 and a half years.

[9] The SSAG numbers cited in paragraph 195 of the July 13 judgment reflect that finding. A printout of the SSAG calculation will be added to the trial documents as Exhibit G.

Justice David Aston Released: July 25, 2023