COURT FILE NO.: FS-23-00000271-00 (Guelph) DATE: 2023 11 24 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Yessica Pamela CEVALLOS B. Barsalou and E. Cinco, for the Applicant Applicant

• and -

Andrew LAMBDEN M. Melito and J. McArthur, for the Respondent Respondent

HEARD: November 14, 2023 by Videoconference

REASONS FOR JUDGMENT RSJ L. RICCHETTI

Endorsement

[1] The Respondent, Andrew Lambden, seeks an interim Order that the Applicant, Yessica Pamela Cevallos, pay $30,000 as security for costs of this litigation.

Background

[2] The parties were involved in a relationship between approximately 2008 and approximately 2020.

[3] They were not married.

[4] They had no children.

[5] The Applicant claims spousal support.

[6] The preliminary issue to be determined is whether the Applicant was a “spouse” under the Family Law Act, in particular, whether the parties continuously cohabited in a relationship for more than three years.

Time residing in the same Physical Place

[7] The Respondent’s primary residence was in Guelph throughout the alleged relationship period. The Respondent has, and had, extensive historical, community, residential and business ties to Guelph. In particular, he owns a successful builder’s real estate business in Guelph.

[8] The Applicant currently resides in Miami, United States of America (USA). She refuses to disclose her exact address for some unknown reason – fearful of the Respondent is not suggested as a reason. The Respondent suggests it is because she resides with another person, a person he suggests may have been a person the Applicant was in a relationship with during the alleged relationship period with whom the Applicant cohabited.

[9] Based on the travel documents submitted by the Applicant, up until 2012, the Applicant was a citizen of Ecuador and, in 2012, the Applicant became an American citizen.

[10] The parties commenced their relationship in and around 2008 or 2009. At times, they resided together. At various places, mostly in the USA. On vacations. On sailing trips. And at times the Applicant came to Guelph. There were significant periods of time the parties did not reside together and were apart, at times in different countries.

[11] The Respondent acknowledges that he had a romantic relationship with the Applicant over many years up to 2019. However, Respondent states it was not continuous nor was it “cohabitation like a marriage”. The Respondent says that their relationship was sporadic from time to time with the parties being separated from each other for periods of time. The Respondent says at times the parties “saw” other persons. The Respondent says they travelled separately at times. The Respondent says he would return to his primary residence in Guelph, where he had his primary real estate business.

[12] The Applicant acknowledges that the Respondent and she had significant interruptions in their residing together as the Respondent travelled a lot. He returned to Guelph often. The Applicant admits that she travelled at times without the Respondent but “not a lot”. However, the Applicant states, “it was rare that we were apart for more than two or three weeks at a time”, however, it is clear, including from the Applicant and Respondent’s evidence, that there were times that the parties were separated for much longer periods of time.

[13] The Applicant did not and does not have residency status in Canada. She could only enter Canada as a visitor.

[14] The Applicant alleges she travelled to Guelph between 4 and 6 times a year until 2019. However, the Applicant’s Canadian travel documents, show that the Applicant entered Canada a total of 36 times between 2010 and 2019. The length of each visit is not shown as the Applicant has not produced her USA travel documents which would show her return dates.

[15] There are years where there was no travel by the Applicant to Canada. For example, there was no travel to Ontario before 2010 despite the allegation that the alleged continuous cohabitation had commenced several years before that.

[16] One would have expected to find that the Applicant had travelled to Ontario much more often since this is where the Respondent’s primary residence and place of business is.

[17] The fact that there are relatively few trips by the Applicant to Canada per year is much more consistent with the Respondent’s allegation that this was not a “continuous” residing together.

[18] On the other hand, the Respondent has produced his travel records from the USA and Canada. These records show travel by the Respondent from Canada frequently, which means he travelled extensively during the alleged cohabitation. This is consistent with the fact that the Respondent spent considerable time in Guelph, often without the Applicant.

[19] In December 2019, the Applicant removed any personal belongings from Guelph and did not return again, despite alleging that the cohabitation continued until 2020. Again, this is consistent with the Applicant’s Canadian entry documentation.

The Draft Cohabitation Agreement

[20] In 2018, the parties contemplated the possibility of living together in a permanent relationship.

[21] Both parties had separate lawyers. Who prepared the draft attached to the evidence is unclear.

[22] The draft Cohabitation Agreement recites that the parties started to cohabit in 2011. It does not state that the cohabitation was continuous. What is clear is that the parties could not agree upon the terms of the draft Cohabitation Agreement. I am not persuaded that this unsigned agreement referring to the commencement of the cohabitation assists the Applicant. The reason is that if the Applicant relies on this recital, the rest of the draft Cohabitation Agreement provided that the Applicant would not be entitled to any support or the Respondent’s assets upon the end of their relationship. A not surprising term sought by the Respondent - a wealthy, successful businessperson with a family from a prior marriage, might want the benefits of such an agreement particularly, where the Applicant did not have any substantial financial assets or means and where the relationship had been what the Respondent alleges was a sporadic, noncontinuous romantic relationship. The release of any support claim would be a significant bar to the Applicant’s claim.

[23] In any event, the draft Cohabitation Agreement was never executed by the parties. As such, it is difficult to put too much weight on this document.

[24] The relationship deteriorated shortly thereafter. This is consistent with the Applicant’s travel documentation which shows that, from early December 2018 until May 2019, she did not enter Canada. And there is no entry shown for 2020 or thereafter. It is also consistent with the Respondent’s allegation that, by mid-2018, the Applicant was living with another person, the same person that the Applicant currently resides with.

[25] This is also consistent with the Respondent’s travel documentation showing a considerable drop in travels in 2018 and 2019, all of which are consistent with the Respondent’s allegation that the relationship deteriorated in 2018 after the draft Cohabitation Agreement was considered by the parties.

The Respondent’s Loan to the Applicant

[26] In about 2013, the Respondent loaned to the Applicant $150,000 to establish a swimsuit business. Interest was payable on the loan. There is correspondence between the parties to this effect where the Applicant on October 11, 2013 stated “I would like to go over with you a few details about the existing business loan to my company.”

[27] The tone and subject of the communication is suggestive of a relationship somewhat less than a conjugal relationship required for cohabitation.

Threatening Behaviour

[28] The Applicant, in writing, demanded money from the Respondent with a threat of publicity:

Would you like to have a peaceful settlement between us? Or do you want to take it to court? Please be aware that taking this to court it means all files are public records. I don't feel you will want your personal life, substance abuse addictions and finances to be exposed to the public. I feel you will not find it fair but it is also unfair that you haven't provide financial assistance for the last 4 months. I don't want to be forced to do this. I think you are beyond this. All Ontario Courts that handle family law matters, with the exception of child protection proceedings, are open to the public. All the documents filed with the court and all of the judges decisions are public record and available to the public to review, take copies, and quote or publish in any form of media, including the internet, unless the Court orders otherwise. As judges generally value transparency in the court process, they are often very reluctant to restrict access to the Court or Court file.

(Emphasis added).

[29] This behaviour by the Applicant continued, when during this proceeding and just prior to this motion, the Applicant left a voicemail, for the Respondent, on September 6, 2023, which stated in part:

“..you have two options, either we settle out of court and you avoid the drama and you know all the circus, all your dirty laundry out, to be honest with you it is extremely rational… I really worry about your drinking…somebody who does this you must be outta your mind… your gonna have to pay me a lot of money…I don’t really care about your corporate finances…cut your losses , be a gentleman…”

(Emphasis added).

The Applicant’s Assets/ Income

[30] The Applicant states she has no assets except for $2,500 USD, as of November 2022 (and had liabilities in excess of that). Interestingly, this Financial Statement showed no other debts or loans (significant below). The Applicant alleges she received a “modest” salary ($38,400 per year as of August 25, 2022) and a reduction in rent. This same Financial Statement alleges that the Applicant’s expense are $94,000 per annum.

[31] In her most current Financial Statement (September 2023), the Applicant states she earned $11,000 the prior year (which is inconsistent with her prior Financial Statement), has $0 income (she provides some property management in return for some reduction in rent), incurs almost $92,000 in yearly expenses, has no significant assets (some unsellable swimwear), and has $150,000 in debts/loans (an approximately $50,000 increase since her March 2023 Financial Statement).

[32] On the Applicant’s first Financial Statement stated she was self-employed. When questioned on this issue, she denied she was self-employed and would not be able to provide any financial statements or documentation regarding her self-employed business.

[33] Questioning took place in May 2023. The Applicant was asked to provide written proof of the loans she claimed she utilized for her living expenses.

[34] The Applicant subsequently provided a written Loan Agreement, but it was signed by the Applicant after the questioning and related to the alleged loan advances prior to the questioning and essentially the loans matured August 1, 2023. In other words, a document created to justify the statements made by the Applicant and the loans matured before this motion was heard.

[35] And, the loans are believed by the Respondent to be of the person that the Respondent alleges that the Applicant resides with for some time.

The Law

[36] Rule 24(13) of the Family Law Rules provides that a judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

a) A party habitually resides outside Ontario.

b) A party has an order against the other party for costs that remains unpaid, in the same case or another case.

c) A party is a corporation and there if good reason to believe it does not have enough assets in Ontario to pay costs.

d) There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.

e) A statute entitles the party to security for costs.

[37] The initial onus is on the party to establish that one or more of the factors in R. 24(13) are present. If one or more are present, then the court has the discretion to grant or refuse the order for security.

[38] Security for costs should not be used as a roadblock for a person who has a genuine claim. Accordingly, the merits or lack of merits is one of the factors to be considered. See also R. 24(13)(d), along with all other factors including the impecuniosity of the party and any other relevant factor.

[39] Essentially, whether to grant the security for cost order depends on a consideration and assessment as to whether it would be “just” to do so, in light of all of the circumstances of the case.

Analysis

R. 24(13)(a)

[40] There is no dispute that the Applicant lives in Miami.

[41] The Applicant admits she has no income and no assets in Ontario nor elsewhere against which a cost order in this proceeding would be eligible.

[42] The Respondent has met his preliminary onus.

Whether it is just that Security for Costs be ordered?

The Merits

[43] I reject the submission that the Respondent must show the case is a waste of time or a nuisance. Such an interpretation would be inconsistent with the clear wording of the Rule and restricting such motions to only be successful where the Respondent satisfies the requirement in s. 24(13)(d).

[44] The Respondent met the onus in s. 24(13) by establishing that the Applicant habitually resides outside of the jurisdiction. The merits, or more properly described as the strength of the Applicant’s claim, is but one factor in determining whether it would be just to make an order for security for costs.

[45] To be successful, the Applicant will have to establish at trial she was in a relationship with the Respondent of “continuous cohabitation” for at least a “three year period”.

Continuous

[46] Blacks Law Dictionary defines continuous as “uninterruptedly; in unbroken sequence; without intermissions or cessation; without intervening time; with continuity or continuation.”

[47] Temporary suspensions for any reason, including travel or brief separations, do not necessarily result in a break in the “continuous” requirement. In such cases, the court considers the intention of both parties to decide whether there was an intentional interruption or cessation of their conjugal relationship. See Re Feehan and Attwells (1979) 24 O.R. (2d) 248.

[48] In this case, both parties acknowledged:

a) a long romantic relationship;

b) the Applicant had no residency status in Canada;

c) the Respondent’s primary residence was in Guelph, Ontario;

d) there were significant times of various lengths when the parties resided apart, often in different countries; and

e) there were times the parties travelled separately.

[49] The Applicant’s evidence that the parties resided substantially continuously in Hawaii from 2009 to 2015 is not consistent with the travel documentation produced and the fact the Respondent had and continued to run a successful business in Guelph. Clearly, there were obvious and substantial interruptions in their residing together during those years.

[50] Then, admitted by the Applicant, there was a significant discontinuation of their relationship when the Respondent returned to Guelph, in 2016.

[51] Then there appears to be a significant interruption in 2018 as well when the parties couldn’t come to an agreement on a Cohabitation Agreement.

[52] The continuous nature of the alleged residing together becomes even more inconsistent with the Applicant’s version when considering the travel documents produced.

[53] Based on the evidence before me, I have serious reservations about the merits of the Applicant’s claim that they resided together continuously for at least three years given the many periods when the parties resided apart.

Cohabitation

[54] In Sanderson and Russell (1979), 24 O.R. (2d) 429; 99 D.L.R. (3d) 713 (Ont. C.A.) the court described cohabitation as follows:

"Cohabit" is defined in s. 1(b) of the Family Law Act as meaning "to live together in a conjugal relationship, whether within or outside marriage". Put into more every-day language this means to live together as a husband and wife or, as His Honour Judge Honey put it in Re Feehan and Attwells, ante, p. 248, February 19, 1979, to live together "in a 'marriage-like' relationship outside marriage".

[55] Allegations that one person in the relationship said they “loved” the other or paid for their accommodations when together or while travelling, or paid for education costs, does not amount to a conjugal relationship. Such conduct suggests a serious relationship or a generous partner, but it does not necessarily mean that the parties were in a “husband and wife” or marriage-like or conjugal relationship.

[56] The Applicant describes the relationship as “committed, exclusive and long-term”. Even if true, none of that necessarily makes or means it was a conjugal or marriage-like relationship.

[57] The Applicant describes becoming “increasingly financially dependent” on the Respondent. Again, that does not necessarily make or mean it was a conjugal or marriage-like relationship.

[58] The Applicant states she was not unfaithful during the alleged period of cohabitation. Again, that does not necessarily make or mean it was a conjugal or marriage-like relationship.

[59] The Applicant does point to a document where they both signed it at some time where each said they were “married” to each other. That may be some evidence of their relationship but not very compelling that they were actually in a conjugal and marriage like relationship.

[60] At paragraphs 33 to 35 of the Applicant’s affidavit, she does state that while in Guelph, as she was unable to work, she took on domestic duties, hosted the Respondent’s family and assisted with his business. The Applicant relies on a photo of a dinner with the Respondent’s family. But, the Applicant’s time in Guelph was sporadic and limited. This evidence from the Applicant simply lacks the quality of evidence one would expect to be led to show a prima facie conjugal or marriage like relationship to avoid a motion such as this.

[61] The Applicant also relies on an unplanned pregnancy that resulted in a miscarriage. I am not persuaded that this adds to the determination whether this a conjugal or marriage like relationship.

[62] I accept that persons, including married parties, might structure their finances to make “business loans” to one another.

[63] Yet, the tone of the Applicant’s email describing the interest-bearing loan from the Respondent was not suggestive of a conjugal or marriage-like relationship as one would have expected after what the Applicant alleges was 4 years of continuous cohabitation.

[64] Based on the evidence before me, there are serious challenges the Applicant faces to establishing a conjugal or marriage-like relationship that lasted continuously over a three-year period.

Security for Costs would Preclude the Applicant’s Continuation of her Claim

[65] The Applicant submits that an Order for security for costs would prevent her from continuing with this proceeding.

[66] This submission is difficult to accept.

[67] First, according to the Applicant she spends approximately $7,500 per month (i.e. approximately $90,000 per year expenses).

[68] Second, the Applicant has the clear ability to raise monies; $50,000 in a few months alone for the purpose of continuing this proceeding and her living expenses.

[69] The fact the Applicant relies on “loans” from others, essentially means that any cost award to the Respondent will depend entirely on the Applicant’s willingness to borrow further money from third parties to pay such cost award(s), failing which the Respondent will have no recourse to collect any cost award(s).

The Applicant’s Threatening Statements

[70] I will not repeat the threatening statements described above.

[71] The publicity threat is not appropriate on any level. More importantly, it is irrelevant on a motion for security for costs. Yet, at paragraphs 37 through 41 of the Applicant’s affidavit, the Applicant goes at great length to describe the Respondent as an alcoholic. This simply appeared as a carrying out of the threatening pressure previously described by the Applicant.

[72] Such conduct should not be encouraged.

The Applicant’s Disclosure

[73] The Applicant created a loan document after being requested for proof of the loans she alleges she required to live on. Until then, there was substantial advances without a document. And it provided that the loan matured almost immediately. And the Applicant didn’t respond to the Respondent’s allegation that the loans were from the person she has been residing with for some years (including for a period prior to the end of the Applicant’s alleged cohabitation).

[74] The evidence, not contested by the Applicant, that she has not filed income tax returns since she has been in the USA, despite running a business and being self-employed.

[75] There are approximately 40 undertakings given by the Applicant that remain unanswered and are the subject of a motion in January 2024.

[76] The Applicant has an expensive lifestyle, with no income and no assets. The Applicant has no credit or debit cards. That is a lot of cash!

[77] When asked to produce a bank statement, the Applicant only produces a phone’s screenshot of her bank account’s balance. What may have occurred on that bank account before and after the screenshot is unknown.

[78] There are very serious issues regarding the Applicant’s finances and expenses.

[79] The Applicant has not made complete and accurate financial disclosure.

Conclusion

[80] Having considered all of the above, I am satisfied that an Order for security for costs in this case is appropriate and just in these circumstances.

[81] The Respondent seeks an Order for security for costs in the amount of $30,000. I am not prepared to impose such an amount at this time.

[82] Costs at most motions and attendances are now fixed by the presiding judge. Up until this point, there are costs of the pleadings, questioning, significant financial disclosure and a case conference which have not been the subject of a cost determination.

[83] I am satisfied that an INTERIM order for security for costs in the amount of $20,000 is reasonable and fair in these circumstances. This is without prejudice to a further order of this court increasing or reducing the amount of the security for costs on a motion on notice.

[84] The security for costs ordered herein shall be paid to the Accountant of the Superior Court of Justice by December 31, 2023, failing which the Respondent may seek relief from this court for the consequences of failing to comply with this order.

Costs

[85] Any party seeking costs shall serve and file written submissions on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to three pages, with attached Costs Outline and any authorities.

[86] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to three pages with any authorities relied on attached.

[87] There shall be no reply submissions without leave.

RSJ L. Ricchetti Released: November 24, 2023