Court File and Parties

COURT FILE NO.: FS-22-30174 DATE: 20240702 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Raymond Reichert, Applicant AND: Tamara Ann Bandola, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Harold Niman, for the Applicant Trevor Smith, for the Respondent

HEARD: June 18, 2024

Endorsement

Nature of the Motion

[1] Should the Court order partial summary judgment and dismiss the respondent’s, Tamara Anna Bandola’s (“Ms. Bandola”), claims for spousal support as there is no genuine issue requiring a trial because the parties were not “spouses” as defined in s.29 of the Family Law Act, R.S.O., 1990 c.F.3 (“FLA”)?

[2] The parties were never married. They do not have any children together. Each party has three adult children from previous relationships. The parties agree that they began dating in August 2018 and that their romantic relationship ended on January 30, 2022.

[3] According to the applicant, Raymond Reichert (“Mr. Reichert”), the parties did not cohabit continuously for a period of three years of more, and therefore, they are not “spouses”. Ms. Bandola submits that the time she and Mr. Reichert spent together was sufficient that it amounted to “living together” in a conjugal relationship for three years or more.

[4] Mr. Reichert has not filed a financial statement in this proceeding or provided financial disclosure because the parties reached a Consent staying the delivery of his financial statement until after the Questioning of both parties. Mr Reichert takes the position that the threshold issue of whether the parties are “spouses” must be determined before he is put to the task of financial disclosure which will be very costly given his complicated financial circumstances.

Background Facts

[5] Mr. Reichert is a wealthy retired software developer and he is 63 years of age. He currently owns three properties, a home in Oakville, a condominium in Toronto and a cottage in Port Carling. He has three adult children from a previous marriage, ages 33, 30 and 29.

[6] Ms. Bandola is a retired schoolteacher and she is 53 years of age. She has been married and divorced twice. She has three adult daughters, ages 24, 21 and 20.

[7] The parties began dating in or about August 29, 2018. They separated on June 30, 2022, when Mr. Reichert was charged with assault. The entire length of their relationship was 3 years and 5 months.

[8] When the parties began dating, Ms. Bandola lived in London, ON and Mr. Reichert had a home in Oakville and a cottage in Port Carling. The parties did not live in the same city until Ms. Bandola moved into Mr. Reichert’s home on June 29, 2019. It is agreed that the parties lived together/cohabited in a conjugal relationship for 2 years and 7 months, during the period June 29, 2019 until January 30, 2022 in Mr. Reichert’s home in Oakville and his cottage in Port Carling.

[9] According to Ms. Bandola, the parties cohabited for the entirety of their relationship, namely, for 3 years and five months and that the time they spent together was sufficient that it amounted to “living together” in a conjugal relationship.

[10] What is in dispute is whether they were cohabiting prior to when Ms. Bandola physically moved into Mr. Reichert’s home in Oakville, namely, anytime from August 29, 2018 to June 29, 2019, which if they did for 5 of those months, the 3-year threshold is met, making them “spouses”.

Issue One: Is this an Appropriate Case for Partial Summary Judgment?

[11] Rule 16 of the Family Law Rules, O. Reg. 114/99 (“FLRs”) allows the Court to make an order for summary judgment without a trial on all or part of any claim made or any defence presented in the case.

[12] On a motion for summary judgment, where there is no genuine issue requiring a trial of a claim or defence, the Court shall make a final order accordingly: R.16(6).

[13] On a motion for summary judgment, the court must also consider Rule 2(2) and (3) of the FLRs which direct that the primary objective of the rules is to enable the court to deal with cases “justly”, which includes: ensuring that the process is fair to all parties; saving time and expense; dealing with the case in ways that are appropriate to its importance and complexity; and, giving appropriate resources to the case while taking account of the need to give resources to other cases, see Jassa v. Davidson, 2014 ONCJ 698 at paras. 40 and 42.

[14] In Hryniak v. Mauldin, 2014 SCC 7 at para. 49, the Supreme Court of Canada discussed the test for summary judgment under Rule 20.04(2)(a) of the Rules of Civil Procedure, which is also applicable to summary judgment motions in the family law context. The Court directed as follows:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[15] The Court further directed judges considering summary judgment motions as follows at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interests of justice. Their use will not be against the interests of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[16] In assessing the evidence to determine whether there exists a genuine issue requiring a trial, the court can resort to expanded powers set out in Rule 16(6.1) of the FLRs. These powers mirror those in the civil rules as discussed in Hyrniak above. While these powers are presumptively available, the court is not required to resort to them to make up for a party’s evidentiary shortcomings, see Duhaney v. McLean-Duhaney, 2020 ONSC 6564 at para. 44, citing Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429 at para. 83 and Broadgrain Commodities Inc. v. Continental Casualty Company (CNA Canada), 2018 ONCA 438 at para. 7.

[17] The modern approach to summary judgment motions requires that parties put their “best foot forward”, see Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753 at para. 9. The court can assume that the party responding to a summary judgment motion will present the evidence it intends to rely on at trial in order to prove that its claim or defence has a chance of success. In the vernacular, the responding party must “lead trump or risk losing”, see 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.) at p. 557, Duhaney at paras. 39-41 and Sharma v. Sharma, 2018 ONSC 862 at para. 38.

[18] The standard for fairness is not whether the summary judgment motion 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. The interests of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness, and affordability.

[19] Rule 16(4.1) imposes evidentiary burdens on both parties. Once the moving party has established a prima facie case that there is no genuine issue requiring a trial, the onus shifts to the responding party “to set out specific facts that there is a genuine issue that requires a trial.” It is this evidentiary burden that “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.” Afolabi v. Fala, 2014 ONSC 1713, at paras. 45, 47.

[20] A responding party may not rest solely on the allegations or denials but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. The responding party 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. Kodovski v. Kondovski, 2006 ONSC 24455, at para. 24: Children’s Aid Society of Toronto v. T.(K.), at para. 10.

[21] When faced with a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties, as set out in Malik v. Attia, 2020 ONCA 787, at para. 62:

i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties; ii) Show how partial summary judgment will get the parties’ case in and out of the court system more quickly; iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

[22] Mr. Reichert argues that this is an appropriate case for partial summary judgment because whether the parties are “spouses” as defined in s.29 of the FLA (did they live together for 3 years or more continuously) is both a discrete and a threshold issue. If partial summary judgment is granted, he submits that there are no other issues that overlap with the determination of whether the parties are spouses. His position is that if the Court grants partial summary judgment, the case will be much shorter because Ms. Bandola can proceed with her unjust enrichment and damages claims, and the issues of income determination and spousal support entitlement will no longer be necessary. In this manner, Mr. Reichert submits that the case will be out of the court system more quickly which will result in a significant savings of time, money, and court resources. The savings to the parties is that Mr. Reichert will not have to go through an expensive process of making financial disclosure, retaining an expert to prepare an income report, and preparing a financial statement, which will be very costly, given his complicated financial circumstances. Finally, Mr. Reichert argues that if Ms. Bandola’s claim for spousal support is dismissed because partial summary judgment is granted, there will be very little left about which the parties can argue.

[23] I am not persuaded by Mr. Reichert’s arguments. I find that this case is not appropriate for partial summary judgment. The issues that will need to be determined at trial in this matter include, whether the parties’ are spouses as defined in s.29 of the FLA, Ms. Bandola’s spousal support entitlement, Mr. Reichert’s income, the quantum and duration of Ms. Bandola’s spousal support (if entitlement is found), whether Ms. Bandola can prove her unjust enrichment claims and ought to receive a monetary benefit or a constructive interest in any of the three homes owned by Mr. Reichert; and whether or not Ms. Bandola is entitled to damages for assault, intentional infliction of emotional distress, since the tort of family violence sought by Ms. Bandola in her Answer and Claim may not be available. All of Ms. Bandola’s claims rest on the same set of facts that are before me on this partial summary judgment motion.

[24] Of greatest concern is that there will be inconsistent findings by more than one judge if I grant partial summary judgment. If, for example, I find that there is no genuine issue for trial as to whether the parties qualify as “spouses” under s.29 of the FLA, and that the parties’ relationship did not have sufficient indicia of cohabitation, another judge may not properly consider Ms. Bandola’s unjust enrichment claim. Alternatively, another judge may consider the evidence in the enrichment/deprivation stage of the unjust enrichment test and come to very different findings.

[25] In Kerr v. Baranow, 2011 SCC 10, the SCC considered identifying unjust enrichment arising from a joint family venture. Four headings were used by the court to consider the evidence: mutual effort, economic integration, actual intent and priority of the family: Kerr, at para. 89. In assessing these factors, a trial judge will have to look at the parties’ mutual effort and whether the parties work collaboratively toward common goals; economic integration, and whether the parties had joint assets, shared their expenses and intermingled their finances; the intention of the parties, by looking at the parties’ actual intentions; and the priority of the family and whether they made sacrifices for the sake of the family unit. Analyzing the evidence in the context of these factors and at each stage of the unjust enrichment test will depend on the same set of facts on which I am being asked to grant partial summary judgment. As a result, there is a probability and, potentially a high likelihood of risk that there will be inconsistent findings.

[26] As a result, I am not persuaded that hiving off this one issue will be more efficient for the parties than having one trial, with viva voce evidence since all issues are intermingled and ought to be determined at the same time. Granting partial summary judgment at this stage could, in essence, result in two different sets of determinations based on the same facts.

[27] Even if I am wrong, and this is a case where partial summary judgment would be more efficient, I do not believe the evidence on the record is clear that there is no genuine issue for trial as to this matter. This is clear from each parties’ positions on the issue, set out below.

Ms. Bandola’s Position

[28] Ms. Bandola submits that the parties were in a serious, conjugal relationship which took on the nature and quality of cohabitation from the outset of their relationship, evidenced by the following:

i) Mr. Reichert created an environment where she was economically dependent on him beginning September 2018. ii) Within three weeks of the parties dating, Mr. Reichert asked her to travel with him and she did. iii) In October 2018, when Mr. Reichert required emergency surgery, he asked the doctors to delay the surgery until Ms. Bandola could arrive. iv) They stayed over at each other’s homes every weekend, either in her home in London or Mr. Reichert’s homes in Oakville. v) The parties spent Christmas holidays together with their two families in 2018 at Mr. Reichert’s cottage. vi) The parties took two vacations together in January/February 2019 and March 2019. This is not disputed. vii) Although she did not move out of her home in London and into Mr. Reichert’s home officially until June 29, 2019, the parties were spending significant time together between October 2018 and June 30, 2019, such that they were cohabiting. Ms. Bandola submits that the parties spent “as much together as they could.” viii) She applied to take a leave of absence from the Thames Valley District School Board in February/March 2019 to spend more time with Mr. Reichert, effective September 2019 for the 2019-2020 school year. Mr. Reichert agreed to pay for their daily living expenses while they were together and to give Ms. Bandola $20,000 to contribute to her Teacher’s Pension and insurance, as if she were still working full-time. ix) The parties were in a committed relationship, such that in February 2019, Mr. Reichert bought her a Rolex watch for Valentines Day and he bought her a “promise ring” in June 2019, when she physically moved away from London and into his homes. x) The parties travelled during their relationship on several occasions, which trips were paid for by Mr. Reichert and planned by him. xi) Mr. Reichert planned a retirement party for her. She planned a 60th birthday party for Mr. Reichert. xii) Their lives were intermingled and they spent time with each other’s adult children.

Mr. Reichert’s Position

[29] Mr. Reichert submits that the parties did not move in together into one home until June 29, 2019, which is evidenced by the following:

i) The parties did not merge their finances, such as having a joint bank account or credit cards until after they moved in together on June 30, 2019, when Ms. Bandola moved out of her home in London, Ontario and moved into Mr. Reichert’s cottage for the summer and then into his home in Oakville; ii) Ms. Bandola maintained her home, which she owned solely, in London, Ontario and Mr. Reichert maintained his properties which he owned during the first 10 months of their relationship. They visited each other where they each lived. They did not spend time together during the week when Ms. Bandola was working full time. iii) The parties did not refer to each other as “husband” and “wife”, nor did they represent themselves as such in the community. iv) Mr. Reichert began to pay for the parties’ living expenses when Ms. Bandola moved into his Oakville home and his cottage property on June 29, 2019. He also started to pay for her benefits and pension. v) Mr. Reichert never contributed any finances toward Ms. Bandola’s children. During the relationship, Ms. Bandola paid child support of $1,400 a month solely without contribution from him. vi) Ms. Bandola did not sell her home in London until August of 2020, after the parties had been living together for about 24 months. vii) Mr. Reichert did not open a joint bank account until January 12, 2021, about 16 months after they began cohabiting, which is also when he gave Ms. Bandola a companion credit card to pay for household expenses while they lived together. viii) On the night of separation, January 30, 2022, Ms. Bandola called the Toronto Police Services (“TPS”) who came to the house. When she was questioned by the TPS regarding the length of the parties’ relationship and if the parties were common law spouses, she answered on two separate occasions that the parties had lived together for less than 3 years. These were spontaneous answers she gave when she was under considerable stress and were truthful. ix) Ms. Bandola rendition of the first 9-10 months of the parties’ relationship cannot be trusted as evidenced by the fact that her sworn statements in this proceeding have been inconsistent and unreliable as follows: (a) In her Answer, dated July 26, 2022, she stated that the parties began cohabiting on June 30, 2019 and they separated on July 1, 2022. During this partial summary judgment motion, counsel on behalf of Ms. Bandola acknowledged that the correct date of separation was January 30, 2022, since Mr. Reichert was facing criminal charges from that date forward and signed an Undertaking to have no direct or indirect contact with Ms. Bandola. It is, therefore, impossible for the parties to have continued in their relationship beyond January 30, 2022 despite Ms. Bandola’s initial position. (b) In her Financial Statement, sworn on July 26, 2022, she stated that the parties began cohabiting in September 2018, not even two weeks after they started dating, and they separated on June 30, 2022. Again, the correct date of separation is January 30, 2022, as admitted by Ms. Bandola’s counsel. (c) In her Financial Statement, sworn on October 27, 2022, she stated that the parties began cohabiting on June 30, 2019 and separated on January 30, 2022. These are the dates Mr. Reichert agrees with. (d) During her Questioning on October 23, 2022, she stated that the parties broke up on August 15, 2022, when her new lease began. Again, this statement has been acknowledged to be incorrect. (e) During her Questioning on October 23, 2022, when asked if she started cohabiting with Mr. Reichert on June 30, 2019, the date she stated in her Answer and her October 27, 2022 Financial Statement, she denied this. (f) During her Questioning on October 23, 2022, when asked if the valuation date is the date on which the parties’ separated, she agreed.

[30] Without viva voce testimony, I cannot with any certainty determine whether there was a meeting of the minds as to the parties living together and merging their lives only after June 29, 2019, when Ms. Bandola moved into Mr. Reichert’s home or at some earlier date.

[31] I find that the question of whether these parties lived together continuously for 3 years or more is a complex issue, which involves multiple facts and credibility issues. If the only consideration was when Ms. Bandola moved into Mr. Reichert’s homes, then it would be a clear case for partial summary judgment. However, the determination of whether two people were cohabiting continuously for 3 years continuously is far more nuanced. If I were to find that the parties do not qualify as “spouses” as defined in s.29 of the FLA for spousal support purposes, another judge could made inconsistent findings for purposes of Ms. Bandola’s claims of unjust enrichment toward Mr. Reichert’s Oakville home, the Toronto Penthouse and the cottage, and her tort claims for damages, because of the overlap in facts.

Order

[32] This court dismisses Mr. Reichert’s motion for partial summary judgment and declares that there is a genuine issue for trial as to whether the parties are spouses as defined in s.29 of the Family Law Act.

[33] The parties are encouraged to try and reach an agreement on costs. If they are unable to do so, Ms. Bandola shall serve and file written submissions of no more than 3 pages, exclusive of a Bill of Costs or Offers to Settle within 20 days of the release of this decision. Mr. Reichert shall have 10 days to file his responding submissions. Reply submissions, if any, shall be limited to 1 page and be filed within 5 days of receiving the responding submissions.

M. Kraft, J. Date Released: July 2, 2024