COURT FILE NO.: FC-20-00000206-0000 DATE: August 15, 2024
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: PETER ALEXANDER CAMPBELL Applicant – and – LINE NOELLA LAFRANCE Respondent
Counsel: James Jeffcott, for the Applicant Karla Policelli, for the Respondent
REASONS FOR DECISION
ABRAMS, J
Overview
[1] The applicant, Peter Alexander Campbell (the “applicant”) commenced the within proceeding seeking: a division of the property the parties acquired during their cohabitation; exclusive possession of the jointly owned residence, known municipally as 1087 Richardson Road, Merrickville, Ontario (the “family residence”); and partition and sale of the family residence.
[2] The respondent, Line Noella LaFrance (the “respondent”) is represented by the Office of the Public Guardian and Trustee (“PGT”).
[3] The applicant asserted in the “RELATIONSHIP DATES” section of the application that the parties started living together in June 2013.
[4] In the same section, the applicant left blank the date on which the parties separated. However, he expressly pleaded in paragraph 2 under “IMPORTANT FACTS SUPPORTING MY OTHER CLAIM(S)”: “I wish to separate from the Respondent, Ms. Lafrance, effective as of the date of this Application”, being December 8, 2020.
[5] The PGT became the respondent’s statutory guardian of property on January 20, 2022.
[6] The respondent’s answer was served and filed as of September 6, 2022.
[7] After the respondent’s answer was served, the applicant changed his position regarding the date of separation. Through counsel, he advised that the parties had in fact separated in August 2015 and not on December 8, 2020, as he initially pleaded.
[8] For reasons that will be explained, the PGT is unable to take a position regarding the parties’ date of separation.
[9] It is against this backdrop that the parties request a determination of the date of separation for purposes of resolving their property and support issues.
Issue
[10] The sole issue for the court to determine is: What is the parties date of separation?
Evidence
Applicant
[11] The parties began cohabitating in 2013.
[12] The applicant contends that the respondent began displaying negative changes in her behavior shortly after their cohabitation began.
[13] Due to these behavioral changes, the applicant decided to separate from the respondent in 2015 when he moved out of their shared bedroom and into the basement of the family residence.
[14] In the circumstances, the applicant sought legal advice. On August 25, 2015, a demand letter was drafted by his previous counsel regarding proposed options to deal with the family residence.
[15] The demand letter was delivered to the respondent; however, she did not reply.
[16] Thereafter, the parties continued living separate and apart in the family residence out of financial necessity.
[17] The applicant points out that both parties had relationships with other people subsequent to the 2015 separation. Specifically, between 2015 and 2018, the respondent was in a relationship with a Mr. Doug Gowanlock (“Mr. Gowanlock”).
[18] The applicant argues that at no time did the parties reconcile their relationship.
[19] It is uncontested that the respondent suffers from substance abuse and other health issues.
[20] The applicant contends that, notwithstanding their separation, he assisted the respondent during times of medical necessity as a caregiver out of compassion and the lack of alternative family and friends available to provide care. That said, at no time after August 25, 2015, did he represent that he was the respondent’s common law spouse, as certain medical records would suggest.
[21] Despite continuing to live together in the family residence, the applicant says that family and friends accepted their separation and treated them as so.
Respondent
[22] The respondent is in poor health. She presents with a medical history significant for alcohol abuse, memory loss likely due to Wernicke-Korsakoff syndrome, alcoholic fatty liver, severe malnutrition (she is extremely underweight), diarrhea, severe electrolyte abnormalities, an element of alcoholic hepatitis and possibly cirrhosis, marked hypothyroidism and hyponatremia. She had a fall in October 2021, and was hospitalized for a suspected pelvic fracture.
[23] The respondent is unable to recall the parties’ date of separation and therefore is not able to confirm if the parties separated in August 2015, in 2020, or at some other time.
[24] Information gaps are not unusual in many of the legal matters the PGT deals with. The PGT is a public body with no prior knowledge of the individuals for whom they act. In general terms, the people that the PGT acts for are vulnerable and have little capacity to properly advise the PGT of their circumstances through no fault of their own.
[25] Thus, the PGT relies heavily on third party information from individuals who may support, not support, or be neutral towards its clients and, as such, any information the PGT receives must be subsequently verified to the best of its knowledge and abilities to build a profile of the client. The PGT often encounters difficulties involved in researching and locating information providers and holdings, as is the case here.
[26] The PGT has been unable to obtain any information from third parties regarding the parties’ date of separation. The respondent’s parents are deceased. Her father died in 2015 and her mother in early 2020. The respondent is estranged from her siblings and extended family. The respondent’s senior client representative at the PGT, Iris Goodman (“Ms. Goodman”) is not aware of any close friends, neighbours, or even acquaintances that are involved with the respondent and visit or speak with her.
[27] To the best of the PGT’s knowledge, the respondent did not have a case or social worker working with her in or around the time of the parties’ alleged separation in 2015.
[28] Even though the PGT is unable to take a position on the parties’ date of separation, it must remain consistent with advancing her best interest in this proceeding. Considering the circumstances of this case, this involves testing whether the evidentiary and/or procedural requirements have been met by the applicant in respect of his claim regarding the date of separation and bringing relevant information to the court’s attention.
[29] A review of the respondent’s medical records disclosed the following: i. On August 16, 2018, the applicant is listed as the respondent’s “person to notify” and it is noted that “Doug G”, whom I infer to be Doug Gowanlock, is, “not allowed info or to visit”. ii. In the respondent’s discharge summary from the Perth and Smiths Falls District Hospital dated August 24, 2018, the doctor notes having a long discussion with her partner, Peter, whom I find to be the applicant. iii. On September 2, 2020, the applicant is listed as the respondent’s “person to notify” and that they are in a common law relationship. iv. On October 30, 2021, the applicant is again noted as the respondent’s alternate contact and that he is her common law spouse. Further, notes from the same date set out calls to the applicant and his reticence to have the respondent return home. v. On April 1, 2022, although still listed as the respondent’s “person to notify”, the applicant is noted as being her roommate.
[30] The following information is relevant to the parties’ family residence: i. The family residence was purchased solely by the respondent prior to the parties’ relationship, in December 2010. The property is comprised of approximately 60 acres and a house that is in a general state of disrepair. ii. In November 2013, the respondent transferred the family residence from her sole name to the parties as tenants in common, each with an equal share. iii. The parties’ real estate lawyer, Mr. Jansen, noted as part of the transfer that the applicant owed the respondent $57,000 for his interest in the property, which was not paid at the time of the transfer. iv. Mr. Jansen’s notes show that although the applicant contributed $32,000 towards the property, the respondent contributed $150,000, the difference being $114,000, of which the applicant owes half. v. In 2017, the parties refinanced the property. The mortgage existing at the time was $130,000 and was increased to $216,000. Of the additional funds borrowed, $63,043.01 was deposited into the parties’ joint bank account. The very next day $62,000 was withdrawn from the same bank account. vi. The mortgage payments for the family residence have been covered by the applicant’s disability insurance and ceased coming out of the parties’ joint account in June 2022.
Legal Framework
PGT’s Role
[31] The PGT is unable to take a position regarding the parties’ date of separation. As such, the parties cannot settle this issue on their own. In the unusual circumstances of this proceeding, a determination regarding the date of separation must be made by the court. This is consistent with the court’s unique oversight role in lawsuits involving mentally incapable litigants.
[32] The court’s role in the protection of mentally incapable parties is a vital concept in our civil justice system. The broad powers of a substitute decision maker in litigation are expressly limited when it comes to settlements made on behalf of incapable parties. No settlement of a claim made by or against a mentally incapable party is binding on that party until it is approved by a judge pursuant to the Family Law Rules, O. Reg. 114/99 (“FLR”) or the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“ROCP”).
[33] Rule 18(12) of the FLR requires that any settlement involving a special party be approved by the court as being in their best interest before it is binding on them:
Offers involving special party or child party
18 (12) An offer may be made, withdrawn, or accepted by a special party or a child party, but neither a party’s acceptance of a special party’s or child party’s offer nor the special party’s or child party’s acceptance of another party’s offer are binding on the special party or child party until the court approves.
[34] The ROCP have a similar requirement:
Settlement Requires Judge’s Approval
7.08 (1) No settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.
(2) Judgment may not be obtained on consent in favour of or against a party under disability without the approval of a judge.
[35] These rules, which require the court to oversee the actions of substitute decision makers, are examples of the codification of the court’s parens patriae role in protecting incapable litigants.
[36] As the Court of Appeal for Ontario explained in Wu Estate v Zurich Insurance Co (2006), D.L.R (4th) 670 (Ont. C.A.), the overriding rationale behind parens patraie is to ensure that decisions made on behalf of incapable people be in their “best interests”:
The requirement for court approval of settlements made on behalf of parties under disability is derived from the court’s parens patriae jurisdiction. The parens patriae jurisdiction is of ancient origin and is “founded on necessity, namely the need to act for the protection of those who cannot care for themselves…to be exercised in the ‘best interest’ of the protected person…for his or her ‘benefit or ‘welfare’”: Re Eve, [1986] 2 S.C.R. 388 at para. 73.
[37] There is nothing specified in the FLR indicating what is required to seek court approval. In civil proceedings, r. 7.08(4) of the ROCP requires the litigation guardian for a party under disability to bring a motion for court approval of the settlement and sets out detailed requirements for these motions. The sole issue to be determined on the approval motion is whether the settlement is in the best interests of the incapable person and should be made binding on them.
[38] The PGT complies with the requirements set out in r. 7.08(4) of the ROCP when seeking court approval in family law proceedings. Rule 7.08(4) sets out the materials that are required for court approval: the affidavit of the litigation guardian which must include the position of the litigation guardian with respect to the settlement, the affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position on the settlement, and a copy of the proposed minutes of settlement.
[39] The applicant has advanced conflicting dates of separation during this litigation. He originally pleaded that the parties separated on December 8, 2020. Midway through the proceeding he changed his position completely alleging that the parties had been separated since August 25, 2015. This represents a difference of over five years.
Evidence Adverse to a Special Party
[40] Since Ms. Lafrance has been found to be incapable of managing property, s. 14 of the Ontario Evidence Act, R.S.O. 1990 c. E.23 (“EA”) is engaged in this proceeding. This provision requires that before a finding may be made against a mentally incapable party, corroboration must be established:
Actions by or against incapable persons, etc.
An opposite or interested party in an action by or against one of the following persons shall not obtain a verdict, judgment, or decision on the party’s own evidence, unless the evidence is corroborated by some other material evidence:
A person who has been found, i. incapable of managing property under the Substitute Decisions Act, 1992 or under the Mental Health Act, ii. incapable of personal care under the Substitute Decisions Act, 1992, or iii. incapable by a court in Canada or elsewhere.
[41] In Shapiro v Tanabe (2000), O.J. No. 213 (S.C.), Dilks J. set out the legal principles regarding s. 14 of the EA:
Watt J. conducted a careful and thorough review of the case law from which he distilled the following principles: (1) the corroboration which is required need not be by evidence of another witness. It can be based on circumstances presented in evidence; (2) these circumstances must be consistent only with the allegation by the opposed or interested party. If they are consistent also with the theory of the plaintiff, they cannot be taken to corroborate the story of the interested party as well; (3) individual items of evidence which are insufficient to corroborate by themselves should not be used in the aggregate to corroborate on their entire weight.
To this summary might be added the following:
The party whose evidence requires corroboration under s. 14 may not corroborate his or her own evidence: McTaggart v. Boffo (1975), 10 O.R. (2d) 733 (Ont. H.C.).
The purpose of corroboration being to strengthen, support, bolster, assist, or otherwise restore confidence in, the plaintiff’s word, it is not necessary that it corroborate every part of that evidence: Sands Estate v. Sonnwald, supra, at p. 7.
The corroborating evidence must enhance the probability of truth of the plaintiff’s evidence upon a substantive part of the case raised by the pleadings (idem) at p. 7.
Corroboration may be found in the adverse inference drawn as a result of the opposite party’s failure to call a particular witness: Sopinka, Lederman, The Law of Evidence in Canada (1992), p. 911.
Without corroboration the plaintiff cannot succeed no matter how convincing his testimony. Accordingly, the courts will strive to find corroboration where its absence might otherwise foreclose a meritorious case.
The mere fact of the evidence is corroborated does not mean that the plaintiff will necessarily succeed. The court will simply weigh with great care his corroborated evidence together with all the other evidence to determine whether or not the plaintiff has satisfied the burden of proof.
Pieces of evidence which when regarded separately do not constitute corroboration will not become corroborative merely by combining them. However, corroborative evidence which is weak when viewed in isolation may achieve strength in combination. Sands Estate v. Sonnwald, supra, pp. 13-14.
[42] Thus, the applicant’s evidence as to the new date of separation needs to be corroborated by other material evidence pursuant to s. 14 of the EA. This is of particular importance in this case given the significance of the issue and its potential impact on the respondent, a vulnerable mentally incapable litigant.
Analysis and Conclusions
[43] There is no quarrel that the new date of separation alleged by the applicant is to his benefit and the respondent’s detriment. Specifically, it may have a significant impact on the respondent’s claim to spousal support and impact her claims related to the jointly owned property.
[44] To recall, in commencing this proceeding the applicant expressly pleaded that he wished to separate from the respondent “effective as of the date of this application”: December 8, 2020. He now argues that due to a head injury he suffered in 2020, which impacts his ability to recall information, he did not remember consulting a lawyer in 2015 until he found a copy of the demand letter, dated August 25, 2015.
[45] Assuming that is true, one might query how credible and reliable the applicant’s evidence is as it pertains to events that transpired between 2015 and December of 2020, or at all? In my view, by attempting to provide an innocent explanation for pleading that the initial date of separation was a mistake, the applicant effectively undermines the veracity of his evidence in toto.
[46] Thus, when the applicant asserts that, subsequent to the 2015 demand letter, he never represented to the respondent’s health care providers that the parties were in a common law relationship, nor did they participate in each other’s daily lives or routines, I reject his evidence.
[47] In my view, the objective evidence disclosed in the respondent’s clinical notes and records establishes exactly the opposite. I say that for the following reasons: i. On two occasions between August 2018 and September 2020, the applicant is referred to as the respondent’s “person to notify”. Moreover, in the September 2020 note the parties are identified as being in a “common-law” relationship. However, by April 1, 2022, a distinction is made in that, although the applicant is still referred to as her “person to notify”, the parties are referred to as roommates, which makes sense in circumstances of the application having been commenced on December 8, 2020. ii. I find that, notwithstanding the 2015 demand letter, the applicant continued to represent, at least to the respondent’s medical care providers, that the parties were in a common-law relationship and, thus, he was the appropriate “person to notify”. Otherwise, he would have clarified, as he must have done by April of 2022, that the status of their relationship had changed. By the latter date, the application was underway, and they were merely roommates. iii. I also note that while the respondent and Douglas Gowanlock may have at some point been involved in a relationship, by August 16, 2018, it was over. The clinical note from that date provides that “Doug G” is “not allowed info or to visit”. Moreover, on August 24, 2018, the respondent’s physician describes having a long telephone conversation with the respondent’s partner, Peter. If that was not so, if the applicant was not the respondent’s partner, he could have disabused the physician of that notion. iv. I find that the parties remained in a committed relationship until at least September 2, 2020, when the applicant was still listed as the respondent’s “person to notify”, and that they were in a “common law relationship”. However, things changed between then and December 8, 2020, when the applicant caused the application to be issued. v. Further, any reference in the clinical notes regarding the parties being in a committed relationship after December 8, 2020, I find to be a mistake in terms of the respondent’s clinical notes not being updated. For example, the October 30, 2021, note continues to refer the parties as “common law” spouses; however, the applicant was reluctant to have the respondent return home upon discharge. In my view, this turn of events makes sense in circumstances of the applicant causing the application to be issued and pleading that the parties were living separate and apart as of December 8, 2020. vi. The respondent’s clinical notes were clearly updated by April 1, 2022, when the applicant is by then described as her “roommate”. vii. By June 2022, the parties mortgage payments ceased coming out of their joint bank account. If they had separated in 2015, as the applicant asserts, it defies common sense that it would take seven years for the parties to stop using a joint account to pay their mortgage. In my view, it is more likely that within approximately 18 months from December 8, 2020, the parties were able to disentangle their banking arrangements.
[48] I have reviewed and considered the affidavits sworn and filed by Lynn McIntosh, Kara Gravelle, Mark Pikor, and Joseph Timothy Bekkers, in support of the applicant’s position. I do not find them to be particularly helpful, for the following reasons: i. First, their reasoning is, by and large, conclusory. An example of this shallow rationale is the contention that Peter and Line were living in separate areas of the house after 2015; therefore, they were living separate and apart, and they never reconciled. ii. Second, the evidence is at odds with the objective clinical notes and records, as set out above. iii. Third, when relying on information and belief, the affiants often refer to information provided to them by the applicant, which is clearly self-serving. iv. Lastly, it may be true that the applicant dated Lynn McIntosh from 2018 to 2020; however, that fact alone is not necessarily dispositive of the issue. Common law spouses, and even married couples, might very well engage in extra-marital relationships while at the same time maintaining their primary relationship. The two are not necessarily mutually exclusive.
[49] When I consider the totality of the evidence, I find that between early September 2020 and December 8, 2020, the applicant began to take legal steps to terminate the relationship and resolve issues relating to the separation. His intent to withdraw from the relationship culminated with the issuance of the application on December 8, 2020. Prior to the application being issued, he held himself out to the respondent’s medical care providers as her “person to notify” and as her “common law” spouse. Moreover, it took approximately 18 months after the issuance of the application for the parties to separate financially, in terms of the mortgage being paid out of their joint bank account.
[50] For all of these reasons, I find that the parties date of separation was December 8, 2020.
[51] If the parties are unable to resolve the issue of costs, written submissions — consisting of no more than five pages in total — shall be submitted within 30 days, along with any offers to settle and bills of costs.
The Honourable Mr. Justice B. W. Abrams