Court File and Parties
COURT FILE NO.: 5017/22 DATE: 2023-09-15 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
REBECCA-JANE BANKS Applicant – and – DANIEL JOSEPH ROLAND BEAUPRE Respondent
Counsel: Self-Represented (for the Applicant) Jasmine Gassi Harnden, for the Respondent
HEARD: September 14, 2023
BEFORE: Rasaiah J.
Reasons on Motion
Overview
[1] The parties have resolved a number of the issues arising from the breakdown of their marriage on a final basis. However, they have not been able to resolve property issues based on their disagreement as to their date of separation/valuation date. The applicant states that the parties separated in August of 2017. The respondent states that the parties separated in January of 2009. The respondent seeks a finding that the parties’ separation date be deemed to be January 1, 2009, and the applicant, seeks a finding that the parties’ separation date be deemed to be August 15, 2017.
[2] On July 11, 2023, Gareau J., based on the parties’ dispute as to their date of separation, on consent ordered the issue to be determined by long motion. The preparation of facta was dispensed with. The respondent was ordered to be the moving party of the motion for the determination of the date of separation.
[3] The respondent filed his motion and supporting affidavit at Tabs 42 and 43 respectively of the Continuing Record, Volume 1. The applicant’s responding affidavit is filed at Tab 44 of the said record. On consent, the respondent filed a further affidavit, attaching more documents to support his position.
Discussion/Analysis
[4] The legal issue in this case is a determination of the date on which the parties separated with no reasonable prospect that they will resume cohabitation [emphasis mine]. They are not yet divorced. The marriage has not been declared a nullity.
[5] I recognize and have considered that the decision respecting the separation date/valuation date for purposes of equalization of net family property can have significant financial consequences for the parties.
[6] The court must first decide when the parties separated, and next, decide the point at which there was no reasonable prospect that the parties would resume “cohabitation” meaning to live together in a conjugal relationship whether within or outside marriage. The notion of reasonableness is informed by sincere action to put the relationship back on track. There must be more than wishful thinking and/or half-hearted suggestions about possible reconciliation. Analysis of the steps taken in the direction of reconciliation are considerations for the court: Al-Sajee v. Tawfic, 2019 ONSC 3857; Cheng v. Sze, 2021 ONCA 346 (“Cheng”).
[7] The court is not bound to choose between the separation dates identified by one party or the other. The court has authority to identify a date that is reasonable and supported by its assessment of all the evidence: See Cheng.
[8] An absence of sexual relations is not conclusive: Tokaji v. Tokaji, 2016 ONSC 7793 (Ont. SCJ).
[9] Further, some actions/events that on their face support separation can be reflective actually of just how the parties lived their lives, i.e. parties regularly living in a tumultuous fashion: Zahelova v. Wiley, 2020 ONSC 6990 (Ont. SCJ).
[10] Tax returns may be relevant: Oswell v. Oswell, [1992] 12 O.R. (3d) 95 (Ont. C.A.).
[11] Objective assessment of the unique circumstances of the parties is required.
[12] The within application was commenced in 2022. However, this is long after both parties’ purported dates of separation, approximately 13 years with respect to the respondent’s position and 5 years with respect to the applicant’s position.
[13] The parties filed affidavits containing their positions, and evidence on how they lived their lives, which I considered.
[14] The applicant acknowledges a break down of the marriage in 2009 and one in 2010 but states it was brief, the 2009 separation being three months in duration.
[15] Accordingly, there is no question that the parties first [emphasis mine] separated in January of 2009. The question that next arises is, if in January 2009, this was the point at which there was no [emphasis mine] prospect of resuming cohabitation to live together in a conjugal relationship whether within or outside marriage.
[16] I cannot and do not find that there was on the evidence filed. I reject January 1, 2009 as the date of separation/valuation date as being reasonable and supported by my assessment of all the evidence.
[17] In the respondent’s Tab 43-affidavit, he at the very least acknowledges, while not having specific timelines, there were attempts to reconcile after January 1, 2009. He states the attempts (plural word used by him) were very brief but never lasted over 90 days. He has no records to support this statement, which I have appreciated may not be unusual, but if he entered into a rental agreement with the applicant as he states, one would think there ought to be records of the arrangement. There are none filed. No banking documents are filed to support same. No rental agreement, and no tax returns claiming rental income are filed to support same.
[18] The documents the respondent relies on to support selection of January 1, 2009 have been explained. The applicant has admitted she was not truthful in those documents and explained why, including but not limited to that the respondent was keeping his parents’ address for purposes of monetary applications; she did not want him to get into trouble or get herself in trouble, and she herself did not want to be responsible for debt, which ultimately led her to claiming bankruptcy, and her moving out of the home in August of 2017. She states in the letter to Canada Revenue Agency (“CRA”) she moved out in August of 2017.
[19] Additionally, the respondent further states any reconciliation attempts were made prior to him purchasing his home in September of 2013. I have difficulty accepting his evidence based on the evidence filed by the applicant, namely Facebook posts, which he does not dispute are from his Facebook account and attributable to him.
[20] I appreciate that the respondent further states that he never kept track of the dates because allegedly the applicant always insisted, they were never getting back together, but again, the bottom line is his statements do not reconcile with the material filed by the applicant in my assessment, and his own words in those documents.
[21] Based on the above, the respondent’s submissions that credibility issues lie with the applicant based on her coming forward indicating that she lied, are accepted, but equally, based on my assessment, there are credibility issues with respect to the respondent’s evidence as well.
[22] It is still up to me to assess the evidence. I can accept none, some, or all of the evidence of a party. I do not accept the respondent’s evidence that they separated January 1, 2009, with no reasonable prospect that they would resume cohabitation and in fact, find that the evidence supports that they did in fact resume cohabitation. Again, the letters and other addresses that the respondent relies on have been explained.
[23] The applicant explained that the CRA dispute was resolved, and why she claimed they were separated during this time. She candidly stated that she did not want to be responsible for the debt. They were “caught” because they were living at the same address. She did not want to get the respondent in trouble either.
[24] The applicant disclosed that she initially had agreed with the respondent to claim addresses and separations related to monetary applications. She presented as not being proud of doing same but explained that for her dignity she had to come forward with the truth with everyone, which she did. She has explained that the reconciliations were ultimately conceded to and points to her filings to CRA. She filed support that for many of these years, that she claimed “married status” with CRA. I accept her explanation. I believe her that they were living at the same address. The applicant filed Facebook entries that would place her at the home, demonstrate the search for the home, and contain the respondent’s own descriptor words for the home as “our backyard”. The entries certainly can be interpreted as the home being used by them as a family unit including photographs.
[25] The applicant also filed several Facebook entries demonstrating seven [emphasis mine] family trips taken from 2012 – 2015 by the applicant, the children, and the respondent, together.
[26] The applicant also filed other Facebook posts made by the respondent pertaining to her birthday, Mother’s Day, “date night”, and looking for and/or related to “their” home (2013-2015).
[27] The allegation that she was a mere renter is not accepted. As stated, no rental agreement was presented. No tax returns claiming rental income were presented. No banking documents were presented. The documents he relies on written by the applicant were explained. Further, again, in my view, objectively, the language used by the respondent himself in the Facebook posts do not give any impression of separation/that the applicant was a mere renter – quite the opposite, including but not limited to the respondent referring to the applicant as “my beautiful wife” (more than once); celebrating “9 whole years as of today, I love you, you are the best” in December of 2013; and referencing “our backyard” in respect of the home. There were many photographs of the parties and the children presenting as a family unit.
[28] I considered that the one of the children has communicated to other third parties an understanding that the parties separated in 2017 as stated by the applicant. Further the applicant states there is an OCL report of Carrie Wilton that indicates this child’s understanding that the parties separated in 2017. This was not disputed by the respondent that I can see. A letter filed by the respondent further has the applicant indicating that she moved out of the home in August of 2017 (to CRA). The applicant further related the separation to a 2017 bankruptcy related in part to the debt that she remembers she filed for (supported by the documents filed by the respondent) and filed a Facebook post of their daughter’s braces removal in August of 2017 as another memorable event to the mark the timeframe of their end as a couple dated August 28, 2017.
[29] While it appears, there were indeed periods of separation, I find the evidence objectively establishes that reasonable prospect of reconciliation still existed thereafter and in fact occurred.
[30] It appears they had a “fire and ice” relationship as the applicant wrote on a Facebook post. The applicant acknowledged the relationship as not being perfect and noted that although “fire and ice”, it has kept it interesting. The respondent described it as on and off, although more limited. But at the end of the day, his words demonstrate that they were both happily together in December of 2013, well after the date his stated attempts to reconcile ended, namely September of 2013.
[31] It is apparent to me that the parties were still presenting as together based on the respondent’s very own entries on Facebook, a social media platform shared with his Facebook family and friends. The language used, combined with all the other factors, namely the sharing of the home, having the same address for tax returns, tax returns showing married status, several social activities engaged in as a family, travelling together (not separately), birthday wishes, and anniversary wishes. These all present as sincere actions/expressions towards each other being in an ongoing relationship and during a time when they are in the same home together.
[32] From 2015 to 2017, the information I have on status of the relationship is the understanding of the daughter as to when her parents separated and the applicant’s letter filed by the respondent that she moved out around her bankruptcy in August of 2017, along with her statement as to this being the date it ended. There were no reconciliations thereafter. Cumulatively the evidence objectively supports the applicant’s evidence and position.
[33] I acknowledge that letters of witnesses were attached to the applicant’s affidavit. However, none are filed in proper format. One at least is commissioned but still not in proper form. At the end of the day, they are hearsay, but what I can and do take from their existence at the very least, is that there appears to be witnesses as the applicant asserts there are, who are at the very least are willing to come forward on the issue if the court deemed it necessary. The respondent indicated that he had witnesses too but did not submit anything related to same except this bald statement. He relies heavily on a set of documents that the applicant completed but admitted to being untruthful on with an explanation that does not defy plausibility. The respondent’s presentation in his Facebook posts contradict his position. They lived in the same house together for many years. They celebrated birthdays, anniversaries and took multiple trips together presenting as a married couple and family unit. The one child believed the parties to be together until August of 2017.
[34] In sum, the applicant’s evidence presented as supportive of her position by my assessment. The respondent’s evidence was insufficient and/or acceptably explained by the applicant, and in my view further, was contradicted by the applicant’s evidence which includes his very own Facebook posts and words demonstrating since action between the parties towards and/or periods of reconciliation and resumption of cohabitation. The applicant moved out in August of 2017. There have been no sincere actions between the parties for resumption of cohabitation thereafter or prospect of same on the record before me. As such, in the balance, for reasons stated, I accept the evidence of the applicant and based on my considerations articulated, find the date of separation ought to be deemed to be August 15, 2017. This date is reasonable and supported by my assessment of all the evidence.
Order
[35] I find that the date of separation/valuation date is deemed to be August 15, 2017.
Rasaiah J.