ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GRAEME RUSSELL
Applicant
– and –
EVA VOLANSKA
Respondent
Gemma Dingwall, for the Applicant
Lynn Cayen, for the Respondent
HEARD: January 27, 28 & 29, 2025 May 12 & 13, 2025
DECISION – FOCUSED HEARING
Cullin j.
Overview
1The applicant, Graeme Russell (“the applicant”), has brought this proceeding, seeking spousal support and a declaration that he has an interest in the respondent’s property. He alleges that he and the respondent were involved in a common-law relationship and that they cohabited from 2000 until March 2019. It is his position that he is entitled to relief from the respondent following the termination of that relationship.
2The respondent, Eva Volanska (“the respondent”) acknowledges that she and the applicant were involved in an intimate relationship between 2001 and 2007. She alleges that, since 2007, they have been platonic friends who lived either as roommates or as landlord and tenant. It is her position that they have no legal obligations to one another.
3This matter appeared before me for a focussed hearing to determine whether and when the parties cohabited as common-law spouses.
The Law
4In this matter, there is a debate about whether the parties cohabited at all, or whether they cohabited and then separated. The burden of proof lies with the applicant to demonstrate on a balance of probabilities that the parties cohabited and were cohabiting on the alleged date of separation: Kossakowski v. Sierchio, 1983 4466 (ON SC), 36 RFL (2d) 395; Zegil v. Opie, 1994 7448 (ON SC), 8 RFL (4th) 91, at para. 91; Broadbear v. Prothero, 2011 ONSC 3656, at para. 74.
5Determining whether and when parties cohabited or separated is an objective exercise. The Court must determine what a reasonable person, knowing all the circumstances, would reasonably believe. The Court examines the joint intention of the parties, considering a set of objective factors: Torosantucci v. Torosantucci, 1991 12851 (ON SC), at para. 14; Warren v. Warren, 2019 ONSC 1751, at para. 6.
6In Oswell v. Oswell (H.C.J.), 1990 6747 (ON SC), at para. 6, aff’d 1992 7741 (ON CA), the Court identified factors to assist in determining when married spouses who are occupying the same residence are living separate and apart. Similar factors have been identified by the Court in determining whether parties are residing or continuing to reside together in a common-law relationship: Molodowich v. Penttinen, 1980 1537 (ON SC), at para. 16; Naegels v. Robillard, 2019 ONSC 2662, at para 37.
7Although occupying the same residence is a relevant consideration in determining whether parties are cohabiting or have separated, it is not determinative. There is no definitive, bright line test for cohabitation. It encompasses a broad range of living arrangements, including arrangements in which people do not share a residence: Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, at para. 42; Stephen v. Stawecki, 2006 20225 (ON CA), [2006] OJ No 2412, at para. 4; Naegels, at para. 24.
8Over time, the factors in Oswell have evolved and expanded. In Warren v. Warren, 2019 ONSC 1751, at para. 7, the relevant factors were identified to include: living arrangements; joint activities; intimate relations; communication; financial organization; division of household obligations; extended family relations; official documents; prior legal proceedings; and, reconciliation efforts.
9Where it is determined that parties cohabited but there is also debate about the date of separation, the Court must also determine the date of separation. In Hodge, at para. 42, citing Re Sanderson and Russell (1979), 1979 2048 (ON CA), 24 O.R. (2d) 429 (C.A.), at p. 432, the Supreme Court of Canada observed that a common-law relationship ends, “when either party regards it as being at an end and, by his or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one”.
Witness Evidence and Preliminary Observations
10The parties relied on affidavit evidence in lieu of direct examination. All affiants were submitted for cross-examination.
11The applicant testified on his own behalf and also called as witnesses his brother Mark Russell, his nephew Scott Russell, and his friends Art Lessard, Richard Cowan, and Adam Ryan. The respondent testified on her own behalf and also called as a witness an acquaintance of herself and the applicant, Ray Cossette.
12The principal witnesses were the applicant and the respondent. In my view, both were challenging witnesses.
13The applicant was often forgetful about dates or provided dates which were inconsistent with the documentary evidence. The applicant testified that he suffered from anxiety and depression, memory deficits, and a learning disability that impaired his reading and writing abilities; there was no corroborative evidence of these conditions tendered. There were aspects of the applicant’s evidence which were not credible, and which caused me to approach that evidence with caution. Overall, however, it was my impression that the applicant was mostly a poor historian.
14The respondent had a better recollection of times and dates. There were aspects of her evidence, however, which were internally inconsistent, as well as aspects of her evidence which were not credible. Overall, it was my impression that the respondent attempted to tailor her evidence to support her position. I also approached her evidence with caution.
15The non-party witnesses were brief. Some of them relied on inadmissible hearsay in their evidence; I did not consider that evidence in making any findings. I was particularly impressed with Scott Russell as a witness; I found him to be very straightforward and credible when he testified.
16To the extent that the evidence of the applicant’s witnesses conflicted with the evidence of the respondent’s witness, Raymond Cossette, I preferred the evidence of the applicant’s witnesses as I found it to be more consistent with the evidence as a whole.
17Overall, I found the evidence of the applicant and his witnesses to be more persuasive than that of the respondent and her witness.
Summary of Facts, Evidence, and Evidentiary Conclusions
18In this summary, evidence and disputed positions have been particularized as necessary to ensure a complete narrative. Although these reasons do not contain a comprehensive recitation of the trial evidence, in making factual findings and deciding each issue, all relevant admissible evidence was considered and weighed.
19The applicant was born on October 4, 1962, and is presently 63 years of age. The respondent was born on April 14, 1961, and is presently 64 years of age.
20The parties were never married and had no children together. The respondent has two adult independent children who are not the subject of this application.
21The parties met sometime between July 1999 and July 2001. Exactly when and how they met was the subject of some debate. It was the applicant’s evidence that they met in a coffee shop in July 1999 when he returned home from a trip to Alberta. It was the respondent’s evidence that they met in July 2001; she provided no context to their meeting.
22There was evidence that, in 1999, the respondent rented in apartment in Elliot Lake, Ontario, that in August 2000 she rented an apartment in London, Ontario, and that in 2001 she rented an apartment in West Lorne, Ontario. It was undisputed that, throughout this time, the applicant was residing in Mount Brydges, Ontario. London and West Lorne are both within 30 minutes of Mount Brydges.
23The respondent acknowledged that, in late 2001, she moved into the applicant’s residence in Mount Brydges however, her evidence on this point was inconsistent. Her affidavit indicated that she moved into the applicant’s residence in September 2001 as friends. It also indicated that she resided with him as a tenant following a motor vehicle accident in December 2001; she filed a rent receipt provided to her by the applicant for the period from January 2002 to December 2002. On cross-examination, she testified that she was not a tenant and that they resided together in an intimate relationship, although she declined to characterize it as a spousal relationship.
24It was the applicant’s evidence that he and the respondent were never roommates, nor did they ever have a landlord-tenant arrangement. He could not recall with certainty when they began to reside together but confirmed that the respondent resided in West Lorne before moving to Mount Brydges. It was his evidence that they cohabited as common-law spouses from the date that they began to reside together.
25It was undisputed that, for a period of time, the parties’ relationship was intimate. It was the applicant’s evidence that physical intimacy began in 2000 and continued approximately once a week throughout the parties’ relationship until they separated in 2019. It was the respondent’s evidence that the parties’ intimate relationship began in 2001 and ended in or about 2007. She testified that the respondent did not shower or wear clean clothes, that she discovered that he wore nail polish and women’s clothing, and that she was not interested in having intimate relations with him.
26The motor vehicle accident cited by the respondent occurred on December 12, 2001, and involved both the applicant and the respondent. It was followed by litigation. In or about September 2003, the applicant and the respondent each received settlements. Some of those funds were subsequently used to purchase the real property in dispute in this proceeding.
27Following the motor vehicle accident settlement, the parties purchased three properties:
a. On September 26, 2003, the applicant’s brother, Cory Russell, purchased a property at 158 Jordan Street, King Kirkland, Ontario (“King Kirkland”) for $9,500. On March 24, 2005, it was transferred to the respondent for $2.
b. On December 12, 2003, the applicant purchased a property at Lot 6, Concession 5, Savard Road, Charlton, Ontario (“Savard”) for $12,000. Some of the documentary evidence referred to the address of the property as Bear Road.
c. On June 18, 2004, the respondent purchased a property at 1112 Thibeault Road, Iroquois Falls, Ontario (“Thibeault”), for $20,000. Some of the documentary evidence referred to the property location as Val Gagne, Ontario, which is a community adjacent to Iroquois Falls.
28It was the applicant’s evidence that he and the respondent pooled their funds to purchase the properties. He indicated that he gave her $10,000 to be applied to the purchases. The respondent denied this. It was her evidence that they each purchased their own properties using their own funds. She asserted that the King Kirkland property was purchased with her money in the name of the applicant’s brother due to her bankruptcy, and that it was transferred to her after her discharge; no documentary evidence was provided to corroborate this assertion.
29At some point after the properties were purchased, the applicant and the respondent moved from southern Ontario to northern Ontario. The evidence regarding how and when each moved was murky. The respondent moved permanently first, followed by the applicant. It was the respondent’s evidence that she moved to northern Ontario in and around 2003.
30There was evidence that, in late 2002 or early 2003, the respondent resided in Sundridge, Ontario for approximately six months to look after a friend’s residence. She permanently moved to northern Ontario in 2003. She resided first at King Kirkland, then at Savard, and finally at Thibeault. It was her evidence that she moved permanently to Thibeault in 2009, although she provided some contradictory affidavit evidence that she was residing with her son in 2018.
31There was evidence that, for a period of time after the respondent moved permanently to northern Ontario, the applicant travelled back and forth between Mount Brydges and northern Ontario. It was the applicant’s evidence that he moved to northern Ontario with the respondent, but that he was required to travel to move the parties’ personal property. When he moved permanently to northern Ontario, he resided first at King Kirkland, then at Savard, and then at Thibeault. It was his evidence that he and the respondent moved to Thibeault together in 2010 or 2011. It was the respondent’s evidence that the applicant never resided at King Kirkland and that he moved to Thibeault in 2014 as a tenant. Mr. Cossette’s evidence, however, suggested that the applicant was residing at Thibeault in 2012.
32What is apparent from the documentary evidence is the following:
a. In August 2004, after the properties in northern Ontario were purchased, the applicant was continuing to rent a residence in Mount Brydges.
b. In May 2007, the applicant applied for Ontario Works in Kirkland Lake, Ontario.
c. In December 2014, the applicant signed a tenancy agreement for Thibeault.
33Throughout this time, on paper, the parties were single. They filed tax returns as single people and the applicant applied for social assistance as a single person. The applicant signed a tenancy agreement for Thibeault. I did not accept this evidence as determinative of the parties’ relationship status. Neither party gave credible evidence regarding these declarations. One can only speculate, but it is likely that the declarations were made because it was financially beneficial to do so. In assessing this evidence, I noted the respondent’s unchallenged evidence that she and the applicant conferred and that she decided to purchase King Kirkland in the name of the respondent’s brother to avoid the implications of a bankruptcy. This led me to conclude that the parties were not beyond employing tactics to secure financial benefits.
34The statement allegedly signed by the applicant, dated August 3, 2004, declaring that he would not sue the respondent for her property, did not support the conclusion that the parties were not spouses. To the contrary, the fact that the respondent felt it necessary to protect her property interests in writing and the fact that the applicant was willing to bequest Savard to her was, in my view, more indicative of a spousal relationship than a friendship.
35What was important in determining the parties’ relationship status was the evidence that demonstrated how the parties conducted themselves with one another during the relevant time.
36There was disagreement about whether the parties shared a bedroom when they resided together, focused particularly on their living arrangements after they moved to northern Ontario. The applicant was adamant that they always shared a bedroom, whereas the respondent was adamant that they did not.
37It was the applicant’s evidence that Savard was a one-bedroom house, and that he and the respondent shared that bedroom. The house layout was corroborated by Mark Russell, Scott Russell, Adam Ryan, and Richard Cowan. Mr. Ryan and Mr. Cowan confirmed on cross-examination that they did not observe the parties’ sleeping arrangements. Scott Russell confirmed on cross-examination that he observed the parties sleeping in the same bedroom.
38In her affidavit, it was the respondent’s evidence that she only stayed at Savard during renovations. While she was there, the applicant was in Mount Brydges and, in any event, she had her own bedroom. On cross-examination, she admitted that there was a period of time when she and the applicant shared a bedroom at Savard, although she maintained that the majority of the time the applicant remained in Mount Brydges.
39The respondent’s evidence about the applicant’s presence at Savard was contradicted by the evidence of Adam Ryan, whose evidence I accepted. He testified on cross-examination that, when the applicant and the respondent resided at Savard, he visited their residence approximately once a week. It was his evidence that they were both residing there and that more often than not he saw them there together when he visited.
40Thibeault was a larger residence. It was the applicant’s evidence that the parties shared a bedroom, while the respondent asserted that she and the applicant each had their own bedroom. The applicant’s evidence was corroborated by Scott Russell, who testified that he stayed overnight at the residence several times and observed the parties retiring to the same bedroom.
41The respondent provided photos of what she alleged were her bedroom and the applicant’s bedroom, however I was unable to discern what I was observing in the photos because the spaces were so unkempt. The respondent also provided a photo of a couch where she alleged that the applicant slept, but as she also alleged that the applicant slept on the couch after March 2019, and it was not clear when the photo was taken, I could not rely on it as evidence that they maintained separate bedrooms prior to the alleged date of separation.
42Turning to the parties’ roles in the household, the respondent confirmed both in her affidavit evidence and in cross-examination that she attended to both the cooking and the cleaning in the household. She confirmed that she cooked for the respondent and that she cleaned after him. This was consistent with the applicant’s evidence. The respondent also testified that the respondent had dogs, but that he was rarely home to care for them and the dogs did not like him, so she fed, walked, and cared for the dogs.
43The applicant and the respondent engaged in activities together outside of the household. The purpose and frequency of those activities was the subject of debate. The respondent confirmed both in her affidavit evidence and in cross-examination that she and the applicant carried out their errands together, including trips to the grocery store and the drug store. In her affidavit, she denied that they attended restaurants or other forms of entertainment; in cross-examination, she acknowledged that they would go out to have coffee together. This evidence was consistent with the applicant’s evidence.
44It was the applicant’s evidence that he and the respondent took motorcycle trips, snowmobiled, attended the annual Biker’s Reunion in New Liskeard, attended truck shows in northern Ontario and Quebec, and attended the Fall Fair in New Liskeard. It was his evidence that they participated in these activities annually. The respondent conceded participating in these activities but asserted that they were not annual activities, some of the activities only occurred once, and that she and the applicant attended as friends.
45It was the evidence of the applicant’s witnesses, which I accepted, that the applicant and the respondent referred to one another as spouses or using terms of endearment in the presence of others.
46It was Richard Cowan’s evidence that the applicant referred to the respondent as his spouse. It was Art Lessard’s evidence that the applicant introduced the respondent to him as his wife and referred to her as his wife in their conversations. Adam Ryan testified that the applicant and the respondent would refer to one another as “honey”, “darling” and “dear” during his visits with them at Savard. It was the evidence of the applicant’s brother and nephew that they regarded the respondent as the applicant’s spouse. Photographs were filed of the applicant and the respondent together during family gatherings with the applicant’s family.
47Financially, the applicant and the respondent maintained separate bank accounts, but many of their other financial affairs intersected with one another. It was the respondent’s evidence that a truck and a snowmobile were purchased using her funds but registered in the applicant’s name. She attested that this was done for convenience, and at the applicant’s insistence. I found her explanations to be implausible and found these actions to be consistent with those of parties in a spousal relationship.
48Likewise, it was the respondent’s evidence that she both paid for and carried out the renovations at all three of the properties, including Savard. She attested that the applicant’s contribution was nominal and that he promised to pay for her contributions to Savard. While the extent of the parties’ respective contributions to the purchase, maintenance, upkeep, and renovations of the properties will be determined at another stage of the proceeding, for the purpose of this proceeding I found it implausible that the respondent would be performing any or all of these services at her own expense, over the course of almost two decades, for a friend.
Finding
49While it is true that neither the applicant nor the respondent disclosed their spousal status to the government or its agencies, that is not determinative of the issue before this Court. One can only speculate about why they did so. It does not change the fact that, for all other intents and purposes, the applicant and the respondent were spouses and that they cohabited as spouses.
50For almost twenty years, the applicant and the respondent were involved in a relationship that, through their conduct, can only be described as a spousal relationship. They moved together from southern Ontario to northern Ontario. Although each owned property they lived in those properties together, maintained them together, and renovated them together. They bought significant items of personal property for their mutual use and benefit. They undertook their activities of daily living and recreational activities together. They conducted themselves intimately in private and held themselves out as spouses to their family and friends.
51While the respondent may now wish to maintain that she and the applicant were only friends, nothing in her in actions prior to March 2019 demonstrated such an intention.
52The applicant has persuaded me on a balance of probabilities that he and the respondent cohabited in a spousal relationship from September 2001 and until March 2019.
Disposition
53For the reasons given:
a. This Court declares that the applicant and the respondent cohabited within the meaning of s.1(1) of the Family Law Act, R.S.O. 1990, c.F.3, and that their cohabitation commenced in September 2001 and ended in March 2019.
b. The parties may make written submissions regarding the issue costs within 30 days of the date of this decision. Submissions shall not exceed 3 pages, not inclusive of a bill of costs.
Cullin, J.
Released: January 19, 2026
CITATION: Russell v. Volanska, 2026 ONSC 388
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GRAEME RUSSELL
Applicant
– and –
EVA VOLANSKA
Respondent
DECISION – focused hearing
Cullin J.
Released: January 19, 2026