Ontario Superior Court of Justice
Court File No.: FC-03-254-01
Date: 2025-04-23
Between:
Lana Morris, Applicant
and
Joseph Morris, Respondent
Appearances:
Lynn Burgess, for the Applicant
Joseph Morris, Self-represented Respondent
Heard: November 19, 20, 21, 26, 27, 28, 29 and December 2 and 4, 2024 at Midland
Reasons for Judgment
J.R. McCarthy
Introduction
This is a complex case, spanning a period of 35 years starting with the dating relationship of the parties in the summer of 1987 and carrying on through to their separation on October 13, 2020 and ending most recently with the Respondent’s guilty plea to the charge of criminal harassment of the Applicant on June 10th of this year.
1So begins the closing statement of the Applicant, Lana Morris (“L.M.”).
2The court heard evidence over some eight days. The evidence touched upon nearly every facet of the sad history between the parties over 35 years. It inflicted upon the listener all manner of recrimination, accusation, castigation, evisceration, denigration, and denunciation. These unpleasantries, unwelcome if not altogether unexpected aspects of the evidence offered by the two protagonists, were also a feature of the evidence describing the relations between the children of the marriage and their mother, between blood siblings, and even between grandchild and grandmother.
Background
3L.M. was born on May 13, 1970. The Respondent, Joseph Morris (“J.M.”), was born on January 18, 1967.
4L.M. and J.M. were married on May 21, 1988. They resided in Scarborough from 1988 to 1992.
5There are two children of the marriage: Jenna Gauthier (“J.G.”), born March 7, 1989, and Joe Morris Jr. (“J.M. Jr.”), born April 22, 1991.
6In 1991, J.M. was charged with assaulting L.M.
7In 1999, J.M. and L.M. purchased the matrimonial home (“MH”) in the community of Alcona in the Township of Innisfil.
8In 2002, L.M. obtained her PSW certificate.
9In February 2003, L.M. commenced a family court action against J.M., but the parties soon reconciled.
10In June 2003, J.G. graduated from high school.
11In July 2003, J.M. pleaded guilty to mischief.
12In January 2006, the parties separated (the period of separation is a subject of dispute between the parties).
13On February 9, 2006, the parties obtained an order that the MH was to be transferred to L.M.’s name solely. Refinancing was obtained.
14On February 13, 2017, L.M. obtained a wrongful dismissal settlement. The settlement funds were removed from the parties’ joint account by J.M. in April 2017.
15The parties’ daughter, J.G., was married in June 2017.
16In October 2019, L.M. settled a claim for personal injury damages arising from a slip and fall.
17The parties finally separated on October 13, 2020.
18L.M. left her employment with the Royal Victoria Hospital (“RVH”) on November 30, 2020.
19The present application was issued on May 7, 2021.
20On September 2, 2021, the court issued an order for the sale of the MH. The MH was sold on January 22, 2022.
21On June 12, 2024, J.M. pleaded guilty to criminal harassment against L.M. and was sentenced.
Relief Sought
The Applicant
22L.M. is seeking a slew of relief, the substance of which is as follows:
a) A dismissal of J.M.’s claim for spousal support;
b) A permanent restraining order;
c) A declaration that L.M.’s Nursing Home and Related Industries Pension (“NH pension”) does not form part of L.M.’s net family property (“NFP”) for the purposes of calculating the equalization payment (“EP”) owing under the Family Law Act, RSO 1990, c F.3 (“FLA”);
d) An order fixing the value of L.M.’s Healthcare of Ontario Pension Plan (“HOOPP pension”) at $50,438.03 and for a lump sum payment of $25,219.02 to be transferred from the HOOPP pension to a locked-in retirement plan (“LIRA”) for J.M.;
e) A declaration that a sum of $43,480 withdrawn by J.M. from a joint account with his late father, Frank Morris (respectively “F.M.” and “the JA with F.M.”), be included in J.M.’s NFP;
f) A declaration that the amount of $25,472 in the JA with F.M., as of October 29, 2020, belongs to J.M. and is to be included in his NFP;
g) A declaration that the sum of $23,542.44 withdrawn from family friend John Luty’s (“J.L.”) BMO account forms part of J.M.’s NFP;
h) A declaration that the sum of $24,429.95 withdrawn from a joint bank account held by J.L. and J.M. (“the JA with J.L.”) be included in J.M.’s NFP;
i) A declaration that L.M.’s RRSP with Scotiabank (the “Scotia RRSP”) be excluded from L.M.’s NFP;
j) A declaration that L.M.’s personal injury settlement from 2017 be refunded to her by J.M. and excluded from her NFP;
k) A declaration that J.M.’s 2019 Dodge Ram be assigned a value of $40,000 and be considered part of J.M.’s NFP;
l) A declaration that J.M.’s 1965 Mustang be assigned a value of $30,000 and be considered as part of J.M.’s NFP;
m) An assignment of value by the court to the motorcycle and two Sea-Doos that remained in J.M.’s possession on the valuation date;
n) An assignment of value of $2,550 (net of notional tax) to the RRSP in J.M.’s name and that it be considered part of J.M.’s NFP;
o) Reimbursement for rent received by J.M. from J.G. and Armand Gauthier (“A.G.”) between October 13, 2020 and January 26, 2022, in the amount of $14,400;
p) Occupation rent for the same period fixed in the sum of $16,800;
q) Reimbursement of mortgage payments made by L.M. for the same period in the amount of $9,276.76;
r) An order that L.M. pay to J.M. an EP in the amount of $107,896;
s) $150,000 in general damages for pain and suffering and compensatory damages for L.M.’s health disabilities and lost earning potential;
t) $150,000 in aggravated and punitive damages;
u) Pre-judgment interest (“PJI”) on any net sum owing to L.M. after any credits for amounts owing are set off against the EP owing to J.M.;
v) Costs of the action; and
w) Post-judgment interest.
The Respondent
23J.M.’s request for relief is difficult to discern.
24In the final version of his Answer dated October 23, 2023, J.M. expressed that he is seeking only spousal support and the equalization of net family property.
25In his closing submissions, J.M. asked the court to consider “a fair equalization of property assets”, along with a request for half the value of the sale of the MH, half the value of the Scotia RRSP, and the “difference in income from the date of separation”, which I take to mean an award granting him spousal support.
26J.M. alluded to claims for his input into the improvement of the MH but there is no claim for a constructive trust or a resulting trust.
27The relief sought by J.M. is therefore limited to an EP and an award of spousal support.
The Respondent and the Applicant as Witnesses
The Respondent
28It is useful to state from the outset the impression that the parties’ respective testimony left on the court.
29I would not give much weight to anything recounted, reported, or alleged by J.M. He did not make for a sympathetic witness.
30J.M. pleaded guilty to various domestic charges in 2024. J.M. has failed to report cash income for years. He has engaged in shady financial dealings, using joint bank accounts held with his father and his former friend J.L for the obvious purpose of hiding funds from L.M.
31J.M.’s financial statements were incomplete, inconsistent, and contradictory. He failed to disclose something as simple as a $3,000 RRSP. For years during the litigation, he refused to disclose and produce pertinent documentation (e.g., bank records).
32On the witness stand, J.M. was hostile and evasive. He explained that he did not include the Ford Mustang in his financial statement, even though it was registered in his name, because his son had an “interest” in it. No evidence ever emerged to support that bald assertion.
33J.M. spoke of vandalism to the 2019 Dodge truck but could not produce any evidence in support of an insurance claim he allegedly made.
34When presented with his financial statement dated April 30, 2021, J.M. could not even accept that it bore his signature.
35In his financial statement of October 23, 2023, J.M. gave an NFP figure of “zero”.
36J.M could not produce any documentation to support his suggestion that the Sea-Doos had been “transferred” to other persons.
37J.M. produced only a meagre one-page bank record for his June 2021 financial statement. J.M. attributed the money and transactions in the JA with F.M. to his father which was clearly impossible given that F.M. was in no position to conduct internet banking.
38J.M. was not “100 % certain” what funds J.L. contributed to the JA with J.L. He could not remember where the multiple deposits in the account came from, and when asked to elaborate, he offered no more than a feeble, “I couldn’t tell you.”
39When pressed, J.M. seemed to accept that $26,704.64 was paid out to him from the JA with J.L. However, he was lost for an answer as to why, and replied meekly that “not all of it was mine.”
40When presented with an email sent from his email account on January 14, 2021, in which he wrote: “Also my father’s account has nothing to do with you and never will”, J.M. denied having sent the email.
41When shown the bank draft from J.L.’s BMO account for $23,542.22, payable to Honda, he claimed to have no knowledge of it. He had no explanation for why he would not simply have used J.G.’s bank account to facilitate a payment for her benefit. When asked to explain where these funds would have come from, he said that it was money “just sitting around” with F.M.
42J.M. claimed that he was not using the money in the JA with F.M. for himself even though his father was blind, essentially housebound, walker-dependent, and could not get to an ATM without assistance. J.M. had no recollection of the 14 e-transfers into and out of the account within 14 months. When asked why he would remove $30,240 from this account in the days and weeks following separation (leaving a mere $16.68), he suggested that F.M. had told him to “clean out the account”.
43Even when faced with his on-the-record admission of the facts underpinning his conviction in June 2024, J.M. at first brazenly refused to acknowledge them to be true.
44Suffice to say, J.M. was utterly lacking in credibility, singularly unacquainted with the truth, had almost no insight into the damage and hurt his conduct has caused, and was shockingly detached from the concepts of accountability, responsibility, decency, and honesty.
45I was careful not to factor J.M.’s demeanour, mannerisms, and approach to the task of representing himself or the nature and content of his questions to witnesses on cross-examination into my assessment of his credibility. My findings and conclusions are based solely upon the evidence.
The Applicant
46No doubt, L.M. was not entirely innocent in the long and tortuous history of the couple’s marriage. Any view of the narrative suggests that she did her part in contributing to the general mayhem which marked the couple’s history and plagued their family’s situation.
47L.M.’s own children, J.M. Jr. and J.G., exhibited undisguised hostility and resentment towards their mother. J.G. referred to L.M. as simply her “birth mother”. J.G. testified to episodes of L.M. ramming J.M.’s truck on Bayfield Street; L.M. “getting up in” J.M.’s face during arguments; L.M.’s involvement in six or seven dubious lawsuits; L.M.’s infidelity; L.M.’s manipulation of the children, telling them what to say to the police; L.M.’s threat to involve child protection services; L.M. siphoning off from the settlement funds from J.G.’s sexual assault case and draining their joint bank account at BMO after separation.
48Nonetheless, except on certain issues, I found L.M.’s testimony to be generally reliable and supported by independent evidence.
Property Issues
Calculation of Net Family Property
Valuation Date
49For the purposes of equalization of net family property, section 4(1) of the FLA defines the valuation date as, among other things, “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation”. In this case, the valuation date is October 13, 2020, when the parties separated.
The Matrimonial Home (“MH”)
50The MH was purchased during the marriage and remained the MH on the valuation date. The MH was transferred into L.M.’s name in 2006 on the consent of both parties, such that L.M. was the sole owner of the home on the valuation date. There was no claim by J.M. for an equitable interest in the MH. The MH should, therefore, form part of L.M.’s NFP for EP purposes.
51The only appraisal of the MH on the valuation date came from realtor Steve Viera (“Viera”). Viera’s mid-range market value of $579,950 was used by L.M. in her calculation of the NFP. The court has no reason to disregard Viera’s opinion. He was qualified to give it. The parties both agreed to retain his services. It is the best evidence of the value of the MH on the valuation date. I found Viera to be a reliable, independent witness. I accept that his appraisal should be used in the calculation ($579,950). From this gross amount must be deducted the notional disposition costs (commission at 5% = $28,995; HST on commission = $3768.85; and legal fees plus HST = $2500). These amounts were not disputed. I find it appropriate to deduct these costs to arrive at the net figure for the MH of $544,686.15 to be assigned to L.M.’s NFP.
The 2006 Transfer of the MH
52The reason behind the 2006 transfer of the MH into L.M.’s name is disputed.
53J.M. claims that it was done to defeat his creditors.
54L.M.’s evidence on this point was, to say the least, convoluted.
55L.M. explained that when the parties separated in October 2005, L.M. and the children moved out of the MH. The parties arrived at an agreement whereby the MH would be transferred to L.M.’s name. L.M. would refinance the mortgage, and J.M. would remain at the home for a short while until he found a place to reside. This version of events from L.M. aligns with her contention that the parties separated in 2005 and only reconciled in 2017. These arrangements formed part of her overall design to have matters settled once and for all; she agreed to strike a balance because she knew that J.M. could be abusive. L.M. did not want to aggravate J.M. for fear that he would disappear with the children or level false allegations against her.
56I do not accept L.M.’s evidence as to why the MH was transferred into her name. It makes no sense. If this was part of a grander design to settle matters between the parties, why would she not have sought terms about contributions of rent and payment of the mortgage and expenses? After all, J.M. and the children were going to be residing there for an indeterminate period. Moreover, the parties were enmeshed in a family law proceeding during which those issues would have been at the forefront of her mind. Why would she take on the obligation of the mortgage debt without ensuring that her financial position was protected? Why was there no separation agreement?
57I find it far more likely that J.M., who was involved in the auto parts business (“Beaches Auto Parts”) operated on the premises and who earned a good deal of cash income, was having difficulty with creditors or taxes. It was in both parties’ best interest to ensure that the MH was protected from any claimants.
58Both J.G. and J.M. Jr. were firm in their evidence that the MH was transferred to L.M. in 2006 to protect it from J.M.’s creditors.
59For the purposes of considering whose asset it is, and in the absence of any claim for a resulting or constructive trust by J.M., the reason for the transfer of the MH is of little import. My discussion of the alleged period of “separation” between the parties will form part of my analysis under the discussion of the NH pension.
Vehicles
60There is no dispute that L.M.’s 2014 Dodge Journey had a value of $6,783 on the valuation date and should be included in her NFP.
61Values must be assigned to J.M.’s 2019 Ford Ram truck and 1965 Mustang (the “Mustang”). J.M. provided no objective evidence of the value of the truck, omitting any mention of it from one financial statement and then assigning it values of between $18,000 in 2021 and $30,000 in 2024. Under oath, he claimed to have paid $40,000 when the evidence would suggest that the purchase price was $58,425 before tax in April 2020. Given that the truck was purchased for higher amount six months before the separation, it is fair and reasonable to ascribe it a value of $40,000 on the valuation date.
62As for the Mustang, there is no evidence of its value before the court. It was registered in J.M.’s name on the valuation date; therefore, it must form part of his NFP. As for the motorcycle and the two Sea-Doos, there is even less evidence about them. Suffice it to say, I do not accept in any way that they were borrowed or leased – there is no documentation to support this. If documentation or independent verification of this were available, no doubt J.M. would have furnished it to the court. He did not. I infer from this that he is not being truthful when he denies ownership of those items on the valuation date. Nor do I accept that any other person had an “interest” in the Ford Mustang. There was nothing of substance to support that assertion.
63I find it fair and reasonable to assign a combined value of $30,000 to the Mustang, the motorcycle, and the Sea-Doos. Those shall form part of J.M.’s NFP.
The Respondent’s Bank Accounts and Cash on Hand
64J.M. produced no evidence of the balances in any bank account in his name or controlled by him on the date of separation. His first financial statement suggested a balance in one of his accounts of $997 on June 29, 2021. I would add this amount to his NFP but I find that it cannot be accepted as an accurate statement of actual cash on hand on the valuation date.
65J.M.’s former friend J.L. testified that he assisted J.M. in hiding money from L.M. J.L. received cash from J.M. before proceeding to obtain a bank draft dated March 1, 2021, from his own BMO account in the amount of $23,542.22. The draft was payable to Honda Financial Services to pay off a loan on J.G.’s car. The evidence of J.M. and J.G. that the money came from F.M. cannot be accepted. There was no documentation to support this, and of course, F.M. is dead. And the question of why the pair would not simply obtain a bank draft from F.M.’s account as opposed to involving J.L. did not garner a satisfactory answer. Nor was there any cash withdrawal from F.M.’s account in the month of the payment to support this flimsy assertion. I find that the funds were made available for the bank draft by J.M. providing cash to J.L. F.M. had nothing to do with the transaction. March 1, 2021 is sufficiently proximate in time to October 2020 to allow me to infer that J.M. had that cash in his possession on the valuation but made use of J.L. and a payment to a third party to hide the funds. I find that $23,542.22 should be included in J.M.’s NFP.
66J.L. testified that he assisted J.M. by opening the JA with J.L at TD in May 2021. J.L. conceded that this was to permit J.M. to hide money. J.M. gave J.L. $4000 as his contribution to the opening of the joint account. J.M. made it clear to J.L. that he did not want L.M. to know about the account. J.M. made sole use of the account into which a total of $24,429.95 was deposited and out of which the sum of $20,704.64 was withdrawn on October 26, 2021. I find on a balance of probabilities that the deposits to the account came from cash J.M. had on hand on the valuation date but failed to disclose. Accordingly, the sum of $24,429.95 should be included in J.M.’s NFP.
67J.L. was credible; his testimony was unshaken on cross-examination, and his evidence was supported by back-up documentation. Moreover, he was prepared, if not to incriminate himself, then at least to paint himself in a bad light and admit his moral wrongdoing. I accept his evidence entirely.
The JA with F.M.
68I find that J.M. used the JA with F.M. to hide his cash assets. J.M. admits to using the account to send and receive e-transfers. This was an admission that J.M. could hardly avoid making since F.M. was blind, unable to use a bank machine or conduct internet banking. Still, J.M. was unwilling to divulge the source of the transfers into or the destinations of the transfers out of this account. This is suspicious, to say the least: surely, a self-employed individual would be able to account for e-transfers into a joint account amounting to $6,851.03 in one month. The records establish that J.M. withdrew $19,380 in the lead-up to the separation, $30,250 within 30 days of the separation date, and a further $8,668 in a three-day period in May 2022 (after having learned that the records from the JA with F.M. were being sought in this proceeding and that the funds might be lumped into his NFP). I find that these amounts properly belong in J.M.’s NFP. J.M. controlled the JA with F.M. and used it for transfers in and out for his own purposes. The sum of $48,298 shall be added to his NFP.
Tools and Inventory of Beaches Auto Parts
69I would assign a value of $15,000 to J.M.’s tools. J.M.’s suggestion that they were only worth $1,000 must be rejected. It was incumbent upon J.M. to have them listed and valued even in a summary manner. He did not. I find $1000 to be an unreasonably low number given that the auto parts business required some level of mechanization and J.M. was able to derive a decent enough income from it. Shops need tools, and tools are expensive. I would, therefore, add $15,000 to J.M.’s NFP for tools.
70I would also add $15,000 for the value of the inventory. The entire idea of an auto parts business is to have an inventory to respond to customers’ needs. Shortly after their separation in January 2021, L.M. received an email from J.M. in which he stated:
We have to figure out how much in auto parts you owned, as you were the registered owner of Beaches Auto Parts. There must have been thousands and thousands of parts in the garage.
71I reject J.M.’s suggestion that he did not send this email. The communication came from his email address. Again, the auto parts business would have to have some significant inventory for it to generate income. Customers expect an auto parts dealer to have parts in stock.
HOOPP Pension
72The imputed pre-tax value of L.M.’s HOOPP pension was determined to be $50,438.03. This value was not disputed, and I accept it as accurate. Unlike the NH pension, L.M. concedes that the HOOPP pension should form part of her NFP. L.M.’s proposal, again unchallenged, is for half the pre-tax value ($25,219.02) of the pension to be transferred to a LIRA in J.M.’s name, rather than including that amount in L.M.’s NFP. I accept that this is appropriate and beneficial to the parties. A transfer of $25,219.02 to a LIRA in J.M.’s name shall form part of the order of the court. The result is that no amount for the HOOPP pension need be assigned to L.M.’s NFP.
NH Pension – The Separate and Apart Question
73The family law value of this pension has been determined by the pension administrator to be $83,947.55. This value is not disputed. The dispute lies with whether it should be included in L.M.’s NFP because her interest in the pension accrued between January 1, 2006, and November 23, 2016, a period during which she asserts that the parties were living separate and apart (the “disputed years”).
74Whether the parties were living separate and apart during the disputed years is a question of fact. In Oswell v. Oswell, Weiler J. (as she then was) reviewed the criteria a court should consider in determining whether spouses living under the same roof are living separate and apart:
- There must be a physical separation (which might include occupying separate bedrooms). Spouses may still be considered as living separate and apart if they remain in the same house for reasons of economic necessity;
- There must be a withdrawal by at least one spouse from the matrimonial obligation with the intent of destroying the matrimonial consortium;
- The absence of sexual relations is relevant but not conclusive;
- Additional factors that may also be considered include:
- The discussion of family issues and communication between the spouses;
- The presence or absence of joint social activities;
- The meal pattern;
- The performance of household tasks; and
- The manner in which income tax returns are filed.
The true intent of the respective spouses must be regarded over their stated intent in considering the above factors.
75The Application filed by L.M. in January 2006 references a “separation date” of October 2005. Yet, there is no separation agreement even though L.M. was assisted by duty counsel.
76In addition, the preponderance of the trial evidence is that the parties remained in the marriage and within a conjugal relationship during the disputed years. If there was period of separation after October 2005, I find that it was brief and that the parties soon resumed cohabitating as a married couple.
77J.M. Jr. testified that his parents had been together for most of his life apart from a week here or there. He recalled a home on Frost Trail where L.M. might have stayed for four to five days. He recalls having to stay in a shelter with L.M. for a couple of hours following the “Baxter gas station incident”. J.M. came along to pick them up sometime later. Nonetheless, J.M. Jr. was clear that, with some exceptions, his parents shared a bedroom throughout the disputed years. J.M. Jr. was a problematic witness: he clearly bears an animus towards L.M.; he has a record for mischief and domestic assault; and his email message intended for his mother or grandmother shows a vulgar and disrespectful side. That said, I found his evidence regarding the living arrangements between the parties to be internally consistent and reliable.
78J.G. had a fair memory of the couple’s history. It was a history characterized by deplorable conduct on the part of both J.M. and L.M. She recalled conflict with J.M. “retreating” from time to time. The police were often called. L.M. often threatened to go to family services. There were times when J.M. left the MH. J.G. canvassed the period from 1999 to 2020 and expressed firmly that the couple never resided separate and apart in the MH. J.G. lived at the MH during much of those disputed years. She specifically recalled her parents’ 25th wedding anniversary in 2013: the couple exchanged gifts, and there was a family vacation to Jamaica to mark the event. L.M. also organized a surprise 40th birthday party for J.M. in 2007. In short, J.G. confirmed that she viewed her mother and father as a couple between 2006 and 2016.
79Other witnesses offered their recollection of J.M. and L.M.’s relationship during the disputed years.
80Armand Gauthier (“A.G.”), the parties’ son-in-law, who resided at the MH for some of those years, testified that there were no signs of separation between 2010 and 2017. The couple enjoyed a normal relationship. He added that L.M.’s personal items remained in the matrimonial bedroom. A.G. also noted that because L.M. tended to snore, she would sometimes sleep in quieter parts of the house.
81Adam Kahler (“A.K.”), a brother-in-law to J.M., recalled 10-15 family meals at the MH during these years. He also recalled the couple taking family vacations together.
82Dan Connell (“D.C.”) noted how the couple often took their grandchildren on vacation with them.
83J.M.’s sister, Christine Morris (“C.M.”), provided extensive testimony dating back to an assault on L.M. by J.M. when the couple resided in Scarborough. She did not see the couple between 2004 and 2014. She offered evidence of an episode in 2014 when she visited the couple at the MH and was told by J.M. that the parties slept in separate rooms. C.M. explained that J.M. even showed her the rooms where they lived “separately”. I do not accept this evidence. A married couple’s sleeping arrangement would be a strange topic for discussion between siblings who had not seen each other for 10 years. It would be even stranger for a party to walk a guest through his home to show her the “separate” rooms occupied by him and his spouse. The evidence was not corroborated by anyone. I find that C.M. would have had no insight into the living arrangements of the parties for 10 years preceding this alleged conversation. C.M. clearly bore an animus towards her brother, which, justified or not, coloured her evidence. It was obvious that she grasped the importance of the “separation” issue and was determined to support L.M.’s version of events. I find her evidence on this point unreliable, and I would reject it.
84Mark Henderson, a far more independent witness, recalled that L.M. and J.M. were together between 2006 and 2017. He believed that other than a period of perhaps one month, there was nothing out of the ordinary about them as a couple. I found it interesting that this witness declined a request made by L.M. for him to sign a statement to the effect that L.M. left J.M. in 2005 or 2006.
85Liam Kahler (“L.K.”), the couple’s nephew, also testified that to his recollection, the parties were not separated between 2006 and 2017. L.K. recalls the couple being affectionate towards each other and spending time with their grandchildren. There were birthdays celebrated and meals taken together at their home. L.K. stayed overnight at the MH and never witnessed L.M. sleeping in a room other than the master bedroom.
86Catherine Chisholm (a.k.a. Camillia Wood) (“C.C.”) is a niece of the couple. C.C. testified that other than a three-to-six-week period in 2003, the couple was together. They hosted regular Sunday dinners and large family gatherings. She specifically recalled attending a Christmas gathering in 2006 when her grandmother was still alive. J.M. and L.M. attended together in the company of their children. More importantly, J.M. and L.M. applied for kinship of C.C.’s children in 2015. That evidence was not disputed. I find that it would be highly unlikely for a separated couple to apply for joint kinship of a child.
87Even L.M.’s father, John Madden, no doubt unwittingly, indirectly provided evidence which tended to prove that L.M. and J.M. were residing together throughout the disputed years. Madden undertook extensive renovations and improvements to the MH beginning when J.M. Jr. was between the ages of 15 and 16. This would have been in 2006 or 2007 at the very beginning of the disputed years. There were five different projects undertaken by Madden, all of which J.M. contributed labour to. Given the extent of the projects, it is more than likely that they spanned several seasons. I find that it would have been highly unlikely that J.M. would have consistently helped with improvements on a home he no longer owned while he was separated from L.M. (especially considering the MH transfer in February 2006). These renovation projects tend to support a couple’s initiative for home improvement and expansion of living space for their growing family.
88Brenda Madden’s evidence on this point was not believable. She described the relationship between the parties as cohabiting without sleeping in the same bedroom. I am not persuaded that she would have any basis to know this. She did not reside in the MH. She spoke about some brief periods of separation with L.M. always “going back to him.”
89L.M.’s evidence on this issue was not compelling. Her narrative of the parties living separate and apart under the same roof in the disputed years was a transparent and self-serving attempt to keep the NH pension out of the NFP calculation. I reject L.M.’s evidence as to the absence of sexual relations and other aspects of couple hood during the disputed years. L.M.’s mannerisms and uncertainty during this part of her evidence betrayed her underlying motive on this issue.
90During her cross-examination, L.M. did her level best to downplay the relevance of the vacations she took with J.M., describing one vacation to Mexico oddly as a “work holiday”. She gave cagey but unconvincing answers as to why she travelled to British Columbia with J.M. to spread his mother’s ashes in July 2014. Her suggestion that she only did this to be “part of the process” bordered on absurd. And when asked to explain why she would then agree to share a room and a king-sized bed with J.M. during this sojourn, L.M. meekly suggested that a separate area was not offered to her.
91While travelling together and as a family does not in itself constitute proof of a conjugal relationship, it is certainly an indicium of it. Common sense would suggest that conjugal partners vacation together as a matter of course. Clearly, the parties travelled together on several occasions between 2006 and 2016.
92There was no evidence that household tasks changed during the disputed years. Indeed, J.M. continued to work to improve the MH, which would have been out of character for J.M., who was, by all accounts, cagey, materialistic, and self-interested.
93Had the parties truly been separated in this period, as L.M. contends, one would have expected to see some level of communication in anticipation of reconciliation in 2016 or 2017. There was none.
94Finally, there is little to no verifiable, independent evidence to establish that the parties were living separate and apart. There was no change of address on a driver’s license, health card, or income tax return. I find it instructive that L.M. would supply the courts with an income tax return from 2017, which describes her marital status as “married” and her spouse as “Joseph Morris”. Yet for the salient period between 2006 and 2017, there is no such documentation. I heard no evidence that this documentation was unavailable. As well, there is insufficient evidence that L.M. regularly resided elsewhere other than at the MH during the disputed years. Her own evidence was a strange mixture of a narrative that, on the one hand, the parties lived separate and apart under the same roof for over 10 years and that, on the other hand, she spent time in alternative living arrangements.
95To all but a few, J.M. and L.M. acted and lived as a married couple.
96This is not to say that the marriage was characterized by tranquility and bliss during these disputed years. It might even have been unavoidably doomed to fail as it ultimately did. On balance, I am unable to find that the parties were living separate and apart during the years 2006 and 2017.
97As a result, the family value of the NH pension less a 15% notional deduction for future income tax, which yields a net amount of $71,355.42, shall be added to L.M.’s NFP.
The remainder of the judgment continues with detailed findings on exclusions, occupation rent, lost interest, RRSPs, debts, spousal support, summary of property claims, tort claims, damages, restraining order, and costs, as set out in the original reasons for judgment.
Released: April 23, 2025
J.R. McCarthy