Constance Candow Plaintiff And: Estate of David James Candow Defendant - v. -, 2018 NLSC 67

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Candow v. Candow Estate , 2018 NLSC 67 Date : March 26, 2018 Docket : 201606G0171 & 201702F0378 Between: Constance Candow Plaintiff And: Estate of David James Candow Defendant - AND - Between: Constance Candow Applicant And: Edward Strickland, as intended Executor of the Estate of David James Candow Respondent Before: Justice Sandra R. Chaytor Place of Hearing: Clarenville, Newfoundland and Labrador Dates of Hearing: September 14, 2017 and November 10, 2017

Summary: David Candow and Constance Candow were married, separated in 1998 but never divorced. Fourteen years post-separation, they sharedoccupancy of a home that David Candow had purchased post-separation. David Candow died a couple of years after the period of sharedoccupancy. Constance Candow brought this application pursuant to the Family Law Act, R.S.N.L. 1990 c. F-2, seeking ownership of thehouse on the basis that they had occupied the home as their family residence. She also sought division of the matrimonial assets. The application was dismissed with costs to the Estate.

The Court did not accept Constance Candow’s evidence as to the nature of theoccupancy of the home. The home was not a matrimonial home as defined by subsection 6(1) of the Act. The other property claimed byConstance Candow was not matrimonial assets as it was acquired after the date of separation and, in any event, the application was notbrought within the time limits prescribed by subsection 21(3) of the Act. Appearances: Vanessa M. Laite Appearing on behalf of Constance Candow Thomas F. Hutchings Appearing on behalf of Estate of David James Candow Authorities Cited: CASES CONSIDERED: Decoste v.

Decoste, 2005 NSSC 12; Greaves v. Greaves, (ON SC), [2004] O.J. No. 2522,4 R.F.L. (6th) 1; Oswell v. Oswell, (ON SC), [1990] O.J. No. 1117, 74 O.R. (2d) 15 (H.C.J.); Newth v. Booth, 2011BCSC 317; Nearing v. Sauer, 2015 BCSC 58; Rosseter v. Rosseter, 2013 ONSC 779. STATUTES CONSIDERED: Family Law Act, R.S.N.L. 1990, c. F-2. REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION [1] The factual matrix underlying this case is the unusual circumstance of a married couple who separated and never divorced,but shared occupancy some 14 years post-separation in a house that had been acquired by one of them after the separation.

Their sharedoccupancy lasted over a year. Two years after it ended, the spouse who owned the house died. The other spouse commenced thislitigation claiming the house was a matrimonial home and seeking division of the matrimonial property.

The crux of the case, is thedetermination of whether the couple resumed cohabitation as husband and wife. [2] David Candow died September 14, 2016 having first executed a Last Will and Testament dated December 29, 2015 (“theWill”) in which he named his lifelong friend, Edward Strickland, as executor and in which, amongst other things, he bequeathed hisresidence in Deep Bight, Newfoundland and Labrador (“the Deep Bight House”), to his sister, Joan Candow, who was residing with himat the time of his death.

She continues to reside there and has taken responsibility for the upkeep of the property. [3] David Candow and Constance Candow were married on September 1, 1973 and separated in 1998. There are two adultchildren of the marriage. The Candows never divorced or entered into a separation agreement. David Candow purchased the Deep BightHouse on August 14, 2002. Constance Candow claims there were periods of reconciliation after the initial separation in 1998 including aperiod between October 2012 and January 2014 during which she resided with David Candow at the Deep Bight House.

There is nodispute that she shared occupancy with him at that time. The issue is the nature of their relationship during that period and whether itwas such to give rise to Ms. Candow being entitled to beneficial ownership of the Deep Bight House pursuant to the Family Law Act,R.S.N.L. 1900, c. F-2 (“the Act”).

[ 4 ] Ms. Candow brought an Originating Application pursuant to the Act claiming entitlement to the Deep Bight House as being the surviving joint tenant of a matrimonial home and seeking equal division of matrimonial property including household contents, vehicles, and money. She also filed a caveat to the Will and a lis pendens regarding the Deep Bight House and commenced an action by way of Statement of Claim in which she seeks: 1. An order prohibiting the sale and/or transfer of ownership of the Deep Bight House without her consent; 2. A declaration that she has an interest in the Deep Bight House; 3.

A declaration as to the validity of David Candow’s Last Will and Testament; and 4. Compensation for her interest in the Deep Bight House. ISSUE [ 5 ] The hearing proceeded by way of cross-examination on affidavit evidence. The parties relied, interchangeably on the affidavits and supporting documentation filed in both actions in presenting their respective positions. The parties agreed, however, that the issue of the validity of the Will would not be addressed at this time.

Rather the case proceeded on the question of whether Constance Candow has an interest in the Deep Bight House, and other property, pursuant to the Act . [ 6 ] The determination of this issue comes down to answering the question of whether Constance Candow has established that, as spouses, they occupied the Deep Bight House as their family residence, or otherwise resumed cohabitation, so as to entitle her to the house and the other assets which she asserts to be matrimonial property. APPLICABLE LEGISLATION [ 7 ] Paragraph 6(1)(

b) of the Act defines a “matrimonial home” as follows: 6.

(1) In this Part (b) "matrimonial home" means the dwelling and real property occupied by a person and his or her spouse as their family residence and owned by either or both of them whether their occupation occurred before, on or after July 1, 1980. [ 8 ] Subsection 8(1) of the Act provides that notwithstanding the manner in which a matrimonial home is held, each spouse has a half interest in the home and subsection 8(2) provides that each spouse’s interest is by way of a joint tenancy: 8.

(1) Notwithstanding the manner in which the matrimonial home is held by either or both of the spouses, each spouse has a 1/2 interest in the matrimonial home owned by either or both spouses, and has the same right of use, possession and management of the matrimonial home as the other spouse has. (2) Subsection (1) creates a joint tenancy with respect to the matrimonial home. [ 9 ] Paragraphs 8(5)(

a) and (

b) provide that the joint tenancy created pursuant to the Act , creates a right of survivorship in a surviving spouse which vests beneficial ownership in the surviving spouse without the need for probate of the estate: 8.

(5) Notwithstanding anything contained in this Part and

Part II, the joint tenancy created with respect to the matrimonial home by this

section (

a) creates a right of survivorship in a surviving spouse; and (

b) operates to vest beneficial ownership in the matrimonial home in the surviving spouse without the need for the probate or the administration of an estate of the deceased spouse. 8.

(6) Where the right of survivorship referred to in subsection (5) operates, the matrimonial home shall not be subject to division as a matrimonial asset under

Part II. [ 10 ] Paragraph 14(1)(

a) of the Act sets out the Court’s power on disposition as follows: 14.

(1) The court may be order, on the application of a spouse of other person having an interest in property, (

a) determine if all or part of the property is a matrimonial home;

… [ 11 ] Paragraph 18(1)(

c) of the Act defines “matrimonial assets” as including all real and personal property acquired by either or both spouses during the marriage, with a number of exceptions including property acquired after separation. [ 12 ] Subsection 21(1) sets out the triggers for a spouse being entitled to apply for an equal division of the matrimonial assets and subsection 21(2) provides that the rights of a surviving spouse to ownership or division of property is in addition to his or her rights acquired as a result of the other spouse’s death. Subsection 21(3), however, sets time lines under which an application under this

section may be brought.

Section 21 reads as follows: 21.

(1) Where (

a) a petition for divorce is filed; (

b) a marriage is declared a nullity; (

c) the spouses have been separated and there is no reasonable prospect of the resumption of cohabitation; or (d) 1 of the spouses has died, either spouse is entitled to apply to a court to have the matrimonial assets divided in equal shares, notwithstanding the ownership of these assets, and the court may order that division.

(2) Rights that a surviving spouse has to the ownership or division of property under this Act are in addition to rights that the surviving spouse has as a result of the death of his or her spouse, whether that right arises on intestacy or by will.

(3) An application made under this

section shall not be brought after the earliest of (a) 2 years after the day the marriage is terminated by divorce or judgment of nullity; (b) 6 years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; and (c) 1 year after the 1st spouse's death.

SUMMARY OF EVIDENCE Constance Candow [ 13 ] Constance Candow Resides in Ajax, Ontario. She and David Candow resided in Ajax throughout their marriage prior to Mr. Candow leaving what was then their matrimonial home in 1998 due to marital difficulties. [ 14 ] Ms. Candow and the children remained in that home for a couple of years and during that time period David Candow paid her a sum of money each month.

That home was then sold and the proceeds divided three ways amongst Constance Candow, David Candow and his brother, Winston Candow (as a portion the property had been utilized by David Candow and Winston Candow to operate a small business). At the time of sale, Constance Candow and David Candow put their respective shares into their separate bank accounts and in Ms. Candow’s words, “divided the contents of the home to our mutual satisfaction.” Up to then, the mortgage on the property had been paid out of a joint bank account.

After the sale, the joint account was closed and they did not hold any further joint bank account after that time. [ 15 ] After the sale of their home, Constance Candow bought a townhouse in Pickering, Ontario which she sold in 2011. The children left home at that point. [ 16 ] Ms. Candow was aware that David Candow had purchased the Deep Bight House. She was not involved, however, in the decision to purchase this property and did not contribute anything to its purchase. She believed that David Candow had been renting a home in Ontario prior to that.

In her affidavit she stated, “In or around 2002, David gave up his rental on Mary Street and decided to move to Newfoundland and Labrador.” [ 17 ] Ms. Candow testified that after the separation in 1998, she and David Candow had periods of cohabitation as husband and wife. Up until 2002, she testified that they participated in family activities and would spend nights together. After David Candow purchased

the Deep Bight House, from 2002-2008 [1] , he resided in this province during the summers and worked in Ontario during winter months. During his time in Ontario, Ms. Candow testified that he would spend a couple of nights with her and the children in her townhouse. Although she did not know exact dates, she stated that from 2009 to 2010, he stayed with her for about 1 year. In 2011, he came to Ontario for about a month because their son was in jail and he was concerned.

He stayed with her for a couple of nights at that time. [ 18 ] The longest period of shared occupancy took place when she first visited the Deep Bight House in October 2012 and stayed until January 2014. The reason for her stay in Deep Bight was explored with her at some length. In her affidavit, she stated that she came to Deep Bight out of concern for David Candow after having spoken with him on the telephone and having formed the impression that he was depressed.

She attested to David having several health problems but acknowledged that she never took him to any medical appointments during her stay in Deep Bight.

She denied that her move to Deep Bight was precipitated by her own financial difficulties although she ultimately conceded on cross-examination that they were both experiencing financial problems at the time and that she had sold her townhouse because she was finding it difficult financially, and otherwise, to maintain it. [ 19 ] In her testimony, she stated that she came to Deep Bight in hopes of reconciliation with her husband and that they did reconcile while she was living there.

She testified that over the years, “we always tried to reconcile” and that in 2012 when she went to Deep Bight, “There was reconciliation. That’s when it happened”. She described their life in Deep Bight as attending to routine chores such as running errands together and preparing and eating meals together and socializing together including attending the 50+ Club. Although she had her own bedroom, they would cuddle at night and were sexually intimate on a couple of occasions over the 14 months.

When she was pushed on this, she said maybe it was “a couple of occasions each month.” [ 20 ] She was aware while in Deep Bight that Mr. Candow had a good friend named Kelly Lane who resided in Nova Scotia. Ms. Lane and David Candow would call each other frequently. Ms. Candow denied Kelly Lane was his girlfriend. After leaving Deep Bight, Ms. Candow wrote to David on May 18, 2014. In that letter she inquired of Mr. Candow if he planned to move to Nova Scotia. She denied that this was in reference to him moving there to be with Kelly Lane. Ms.

Candow spoke with Kelly Lane at David’s memorial service in Ontario and Ms. Lane thanked her for being with David in Deep Bight. [ 21 ] Once Ms. Candow secured employment, she paid David Candow $300 each month towards household utilities and groceries during her stay in Deep Bight. He also loaned her money for a dental procedure with the intention that this money would be repaid. [ 22 ] Ms. Candow was not aware that David Candow had obtained a mortgage on the Deep Bight House while she was staying there and that he had indicated on the affidavit accompanying the mortgage that he was not a spouse.

She acknowledged that David was more private about financial affairs while she was staying with him then he had been previously. For example, she stated that she had inquired of him the value of the Deep Bight House, and he did not want to give her that type of information. [ 23 ] She testified that she left Deep Bight in January 2014 because she was concerned about their son who was being released from prison in Ontario. It was her intention to return to Deep Bight once things settled down for their son and to retire there with David Candow. [ 24 ] In the May 18, 2014 letter, Ms.

Candow apologized to David Candow for how she treated him while in Deep Bight and wrote that she may not have appreciated what he tried to do for her. She wrote that she felt “very closed in” in Deep Bight and that while she is still not happy she thinks she will be “good” once she gets a job. In this letter she also advised David that both children were doing fine. When questioned on this letter, she stated that she was experiencing anxiety and depressed while in Deep Bight because of her son’s situation in Ontario. She also admitted that she felt isolated in Deep Bight. [ 25 ] Ms.

Candow called David Candow in October 2015 and inquired of potentially returning to Deep Bight. David advised her that his sister, Joan, was residing with him and therefore it was not a good time for her to return. [ 26 ] Ms. Candow was contacted by Winston Candow a week prior to David’s death to advise her he had been hospitalized. She did not visit David prior to his death. Their children are mentioned in the obituary prepared by his family but she is not. [ 27 ] After Mr. Candow’s death, Ms.

Candow applied to Service Canada for the division of Canada Pension Plan pension credits as a result of the dissolution of the marital relationship. Correspondence from Service Canada dated December 13, 2016, was adduced into evidence. The dates of separation referenced in the correspondence did not coincide with the dates Ms. Candow gave in her evidence. Ms. Candow did not dispute that she provided theses dates on the application to Service Canada. She indicated she must have been confused when she provided those dates and maintained that the dates stipulated in her affidavit were the correct dates.

Stella Kane [ 28 ] Stella Kane was a long-time friend of David Candow and Constance Candow. Ms. Kane had remained in contact with the Candows over the years after their separation in 1998. When the Candows separated, David Candow lived with her ex-husband for a period of approximately two years. David Candow also stayed with her and her current husband for approximately six weeks prior to purchasing the Deep Bight House in 2002.

She was confident in her belief that the Candows had not reconciled after the separation in 1998. [ 29 ] She recalled Constance Candow coming to stay with David Candow in Deep Bight in 2012 but did not believe that the Candows were reconciled and living as husband and wife. Although Ms. Kane had not socialized with David Candow or Constance Candow or visited them at the house during Ms. Candow’s stay in Deep Bight, she had had several conversations with Constance Candow during her stay that left her with the clear understanding that the Candows were not residing as husband and wife. Ms.

Kane understood from her discussions with Ms. Candow that she was staying with David because she had been going through a difficult time in Ontario and that she had called him and asked if she could come stay in Deep Bight. Ms. Kane worked at a bridal shop and Constance Candow visited her place of work on several occasions. Ms. Kane joked with Ms. Candow as to whether she was coming into the store to shop for a bridal gown. Ms. Candow replied by telling her the relationship with David was not like that and that they had their own separate bedrooms.

[ 30 ] Ms. Candow told Ms. Kane that she was not happy in Deep Bight and felt isolated there and that this is why she was returning to Ontario. Edward Strickland [ 31 ] Edward Strickland is the Executor of David Candow’s estate. He resides in Hillview, a community approximately a ten-minute drive from Deep Bight. He moved there in 2010 after having resided most of his adult life in Ontario. He was a lifelong close personal friend of David Candow. [ 32 ] Edward Strickland was aware of David Candow’s acquisition of various residential properties over the years after the separation in 1998.

David first bought a home on Mary Street in Ajax and sold it when he purchased the home on Angus Street, Ajax. He resided in the Angus Street home and his sister, Sheila rented a portion of the house from him. He sold that house to his sister Sheila in 2005 or 2006. After acquiring the Deep Bight House in 2002, David worked winters in Ontario and returned to Deep Bight in April each year. This continued until 2007 when he moved permanently to Deep Bight. During his trips to Ontario to work, David would stay in the Angus Street house. Mr.

Strickland saw his friend on a regular basis during these years as he was still residing in Ontario at the time. [ 33 ] Edward Strickland was also aware of David Candow’s personal life including three consecutive relationships after the 1998 separation. From 1998 to 2002, he dated Nadine Hickey. From 2003 to 2008, David Candow was in a relationship with Anne Hatfield who resided in Ontario. He observed them together and socialized with them a number of times including visits to Anne Hatfield’s house. For a period of time in 2007-2008, Ms.

Hatfield came to Newfoundland and lived with David Candow at the Deep Bight House. Edward Strickland visited them at the Deep Bight House on three occasions while she was staying there. [ 34 ] From 2008 to 2016, David Candow was in a relationship with Kelly Lane who resided in Nova Scotia. His friend spoke of moving to Nova Scotia to live with Ms. Lane. He recalled David travelling to Nova Scotia to visit Ms. Lane over the years including in 2009 and 2011.

He distinctly recalled the 2009 trip as David had a moose accident on the return portion. [ 35 ] Edward Strickland was confident that David Candow and Constance Candow had not reconciled at any point in time after the separation in 1998. He was certain that David would have told him of any reconciliation. He had frequent contact with him over the years including socializing with him most weekends. He had no knowledge of David staying with Constance over the years and did not believe this to be the case.

In all the time he spent with his friend, he had never mentioned spending time with her except one time period when he rented an apartment unit in her townhouse for a couple of months. He did this to assist Constance Candow and the children financially. [ 36 ] Edward Strickland disputed Constance Candow’s evidence that David Candow spent an entire year in Ontario in 2009 or 2010. He was confident his friend did not return to Ontario for that long after having purchased the Deep Bight House in 2002. Edward Strickland was still residing in Ontario at that time.

He was aware that David returned to Ontario for approximately a month in 2011 and that he stayed with his brother, Winston during that visit. He was aware of this as he looked after the Deep Bight House while his friend was away. [ 37 ] Edward Strickland testified that when Constance Candow came to Deep Bight in 2012 it was because she had nowhere else to go and had called David and asked if she could come.

He described his friend as a “Good Samaritan” and said he did the same thing for his sister, Joan in 2014 when she needed a place to stay. [ 38 ] Edward Strickland saw his friend four or five times per week while Constance Candow was staying in Deep Bight. Two or three of these weekly visits would occur at the Deep Bight House and he had occasion to observe them together during those visits. Based upon what David Candow told him and from what he observed, Ms. Candow was “like a boarder” in the house. She would come home from work and go directly to her room upstairs.

He did not observe any “matrimonial type” communication between the Candows during her stay. [ 39 ] Edward Strickland took issue with Ms. Candow’s assertion that she had cooked and cleaned for Mr. Candow while she was living in Deep Bight. He never saw them eat or cook together. He observed Constance cook for herself and take her meal upstairs. He described his friend’s poor eating habits and that he would only eat one meal a day at a fast food establishment. The house was dirty while Constance Candow lived there.

He described the bathroom as being filthy with nicotine “running down the walls”. [ 40 ] Edward Strickland acknowledged that David Candow and Constance Candow socialized together a little during her stay in Deep Bight. For example, they visited his house together on a few occasions and attended the 50+ Club. He stated however that he did not perceive them as doing so as a couple and recalled that they would have their dinner at the club and leave before the dance started. [ 41 ] Edward Strickland inquired of Constance while she was in Deep Bight if there were a possibility that she and David would reconcile.

She replied that there was no chance and stated, “Ugh! I wouldn’t touch that man with a 50-foot pole.” Edward Strickland stated that he could still see the look on her face as she said this. David Strickland [ 42 ] David Strickland has resided in Kelligrews, Newfoundland and Labrador since 2006 when he moved back to this province from Ontario. He is the brother of Edward Strickland and described David Candow as his best friend and like another brother. It is clear from the evidence that he and David Candow were very close. They were childhood friends.

David Candow was the best man at his wedding and David Strickland is the Godfather of one of the Candow children who referred to him as “Uncle Dave”. He loaned David Candow money to buy the Angus Street property. [ 43 ] During their years together in Ontario, he resided in close proximity to his friend and they saw each other at least twice per month and would speak on the telephone at least once or twice per week. He also described Constance Candow as a friend and that they socialized together as couples prior to the Candow’s separation in 1998. He also remained friends with Constance Candow after the

separation. He never saw Constance and David socialize together after the 1998 separation. Both of them would continue to visit hishouse but would come separately. [44] He did not believe that the Candows reconciled after their separation in 1998 and felt confident that if that happened, he wouldknow. He testified that David Candow would have definitely told him as, “He told me everything. That is the type of friends we were.” There were no secrets between them.

Dave Candow had confided in him about a medical condition that would have prevented him, ormade it difficult, for him to have an intimate sexual relationship. There would be no reason for him not to confide in his good friend thathe had reconciled with Constance Candow as David Strickland was also friends with her. [45] He was not aware that the Candows spent days and nights together between 1998-2002 as claimed by Ms. Candow and he didnot believe this to be the case. He acknowledged, however, that during this time period he was a long-haul truck driver and wouldusually only see David Candow one weekend a month.

After his wife died in 2001, he sold his truck and would see David Candow twoor three times per week. [46] He was aware that from 2002 to 2007, David Candow would spend time with the children but his friend never mentionedhaving contact with Constance Candow except at one point in time David Candow moved into an apartment in her townhouse. Hevisited him a number of times while he was staying there. David Candow told him that he was staying there to provide financialassistance to Constance and the children.

He observed them together on occasion during this time period and based on his observation,this was not a reconciliation of their marriage. He did not see them portray any affection towards one another as he would expect fromthem if they were a couple. He saw them interact “almost like friends”. To his knowledge, both Constance Candow and David Candowhad other significant others at this time. [47] After David Candow purchased the Deep Bight House, he would travel back and forth to Ontario in the winters to work until2007. He would stay in the house on Angus Street while in Ontario.

David Candow kept this house for a period of time after havingacquired the Deep Bight House. His sister, Sheila, rented a portion of the house and eventually he sold it to her. He visited DavidCandow at this house during this time period. He acknowledged that after he moved to Newfoundland and Labrador in 2006, hisknowledge of where David Candow stayed when he returned to Ontario was based on telephone contact. [48] David Strickland was aware of Constance Candow’s stay in Deep Bight.

David Candow told him that Constance had contactedhim and said she was laid off and had nowhere else to go so he let her come stay with him. Constance Candow also told him that she hadbeen living in her sister’s basement in Toronto but had nowhere else to go so came to Deep Bight. [49] He teased David Candow about Constance staying with him. David Candow replied that they were not cohabitating togetherand that they had separate beds.

David Candow made a point to distinguish that she was “staying” with him as opposed to “living withhim” and that he did not want her living here on a permanent basis. [50] He did not see David Candow as frequently during the time period that Constance Candow was in Deep Bight but they didmaintain regular telephone contact. He also recalled having visited them in Deep Bight once and that they both visited his house on oneoccasion. He did not get the impression that they were a couple based on his observations of their interactions on those occasions.

Forexample, he noted that they did not sit together and while Constance was “physically present” he would not say they were “together”. ANALYSIS [51] Constance Candow contends that the Deep Bight House is a matrimonial home pursuant to subsection 6(1)(

b) of the Act andthat as the surviving spouse and joint tenant, she is the beneficial owner of the home. This is based on her assertion that she and DavidCandow reconciled during her stay in Deep Bight from October 2012 to January 2014. Constance Candow did not call any evidence tocorroborate the nature of her relationship with David Candow during this time period even though she stated that her sister had come tovisit during her stay and would have been able to do so. Nor did she adduce corroborating evidence as to the assertion that they hadcohabitated on other occasions over the years.

For example, the Candows’ adult children were not called to testify. Therefore, I am leftonly with the evidence of Constance Candow that there was reconciliation and the evidence of the witnesses called by the Estate, threeclose friends of David Candow. All three testified that the Candows did not reconcile. Case Law [52] The parties were unable to provide any case law from this jurisdiction dealing with a similar fact situation. A few cases andauthorities were provided from other jurisdictions. In Decoste v.

Decoste, 2005 NSSC 1, a husband and wife had separated and then thewife had asked the husband to return to the matrimonial home. The Court noted (at paragraph 17) that, “After resumption ofcohabitation, the parties took

part in family events, resumed conjugal relations, socialized and from all aspects were living as husbandand wife.” [53] These are no doubt factors to consider in assessing whether parties have reconciled, however, in Decoste, there was no disputethat the nature of the cohabitation of the parties was as husband and wife. The issue was whether the separation agreement signed by theparties after a prior separation was void as a result of the reconciliation. The crux of the case currently before the Court is whether theCandows shared occupancy as husband and wife.

People can live together, share household duties and expenses, socialize together andengage in sexual relations but that may not mean that they are doing so as spouses. Each case must be assessed on its individual facts andmerits. [54] In the case of Greaves v. Greaves, (ON SC), [2004] O.J. No. 2522, 4 R.F.L. (6th) 1, the parties separatedand years after Mrs. Greaves had left the matrimonial home with the children, the couple resumed a relationship which included sexualrelations. Mrs.

Greaves also had periods of staying at the home and she testified as to carrying out many activities that would point toreconciliation including entertaining mutual friends at the house, occasionally cooking and caring for Mr. Greaves and picking outfurniture for the house. The separation date in that case was key as it is the triggering event for determining the valuation date at whichthe Court calculates family property and its equalization under the Ontario family law legislation.

In Greaves, the Court found that theparties had not reconciled as it was not persuaded these were periods of cohabitation with reconciliation as their primary purpose and

found that the ongoing relationship between the parties was more like a “long-standing affair than a marriage.” In reaching its decision,the Court noted that Mrs. Greaves had not led any independent evidence from friends, acquaintances or neighbours to corroborate herview that they were living together. [55] In Greaves, the Court also referred to the importance of considering various objective factors to determine if the parties areliving apart or not and cited criteria outlined in Oswell v. Oswell, (ON SC), [1990] O.J.

No. 1117, 74 O.R. (2d) 15(H.C.J.) affirmed (1992), (ON CA), 12 O.R. (3d) 95 (C.A.), another Ontario case involving establishing the valuationdate.

In Greaves, the Court summarized these criteria as follows: 1. physical separation (with acknowledgement that spouses may residein the same house for reasons of economic necessity); 2. the withdrawal by at least one spouse from the matrimonial obligation with theintent of destroying the matrimonial consortium; 3. sexual relations is not conclusive but is a factor to be considered; 4. other relevantmatters include communication, joint social activities, meal patterns; 5. performance of household tasks; and 6. having regard to the trueintent of a spouse as opposed to a spouse’s stated intent. [56] The case of Rosseter v.

Rosseter, 2013 ONSC 779, also identified a list of factors considered useful in determining when aseparation has occurred for purpose of determining the valuation date under the Ontario legislation. Again, this is different legislationfor different purpose than this case but is of some assistance in identifying the type of conduct and evidence that courts can consider inassessing whether parties are residing as husband and wife.

The Rosseter list includes: whether they maintain separate residences and ifso, why; eating meals together; performing services for one another; attending social functions together; celebrating special occasionstogether; helping each other during difficult times; vacationing together; sexual intercourse; fidelity to one another; financial support;shared use of assets; behaviors towards one another in the presence of third parties; how the parties refer to themselves in documents andsteps taken to terminate the marriage.

The Candows’ Relationship during their time together in Deep Bight [57] Constance Candow described the time spent with David Candow in Deep Bight as being similar to how many married coupleswould normally conduct themselves. He drove her to work, they ran errands together, they ate and prepared meals together, andsocialized on occasion. [58] She also testified that while they had their own bedrooms, they would often cuddle at night and that they had a sexualrelationship. She wavered in her evidence, however, on the frequency of the number of times that they were intimate.

At first, shetestified that it was a couple of occasions over the course of the 15 months and later stated “maybe a couple of occasions each month.” David Strickland gave evidence that his friend had confided in him that due to a medical condition he was unable to engage in sexualintercourse. Ms. Candow did not mention having knowledge of this during her evidence. [59] In any event, the existence of non-existence of a sexual relationship, while a factor to be considered, is not determinative of theissue of whether a couple has reconciled [Newth v. Booth, 2011 BCSC 317 at para. 17]. This aspect of Ms.

Candow’s evidence, and thediscrepancies in it, is of relevance, however, as part of the overall assessment of the credibility of her assertion that they had reconciledduring her stay in Deep Bight. [60] In this regard, I have also considered the evidence of Stella Kane and Edward Strickland regarding Constance Candow’sresponse to questioning by them as to whether they had reconciled as a couple. Both of them had independent conversations with Ms.Candow in which she recoiled at the notion of having reconciled. I found both of their evidence in this regard to be compelling in theirdescriptions. Ms.

Kane joked with Ms. Candow as to whether she was coming into the bridal shop to buy a dress and Ms. Candow wasclear to tell her that her living situation with David Candow was not as husband and wife. Edward Strickland distinctly remembered Ms.Candow saying she would not touch David Candow with a 50-foot pole. Edward Strickland’s evidence was compelling on this point ashe stated he could still see the look on her face as Ms. Candow said this. Ms.

Candow’s reaction and responses to this questioningoccurred contemporaneously with her time in Deep Bight and prior to the issue that is currently before the Court arising. I accept theevidence of Stella Kane and Edward Strickland that Ms. Candow was adamant in her denial of any reconciliation or prospect ofreconciliation at the time that she resided in Deep Bight. [61] I accept that the Candows may have run errands, eaten meals together and attended a few social functions together during hertime in this province but I do not accept that they did those things as a reconciled married couple. The fact that Ms.

Candow paid DavidCandow a set amount for groceries and household utilities is more in keeping with a boarder than a spouse. Further, she borrowedmoney from him to have a dental procedure and was expected to repay this amount. While together as a married couple prior to 1998,they shared a joint bank account out of which such expenditures were paid. [62] I further accept the evidence of the three other witnesses that the Candows’ behavior towards one another was such that theydid not perceive them to have reconciled.

They were convinced, in fact, of the opposite, that Constance Candow was merely staying withDavid Candow out of convenience. [63] Edward Strickland saw his friend often while Constance Candow was staying with him. He had an opportunity to observe theCandows together at the residence. Based upon what David Candow told him and what he observed, Ms. Candow was “like a boarder” inthe house. He witnessed Ms. Candow come home from work and go directly to her room upstairs.

He testified that he did not observeany “matrimonial type” communication between them. [64] David Strickland presented as a credible witness and was forthright in admitting when he did not have direct knowledge onaspects of his evidence. I am satisfied that he had a very close relationship with David Candow and that they confided in one anotherabout their personal lives throughout the years. David Strickland had no knowledge of David Candow and Constance Candow havingreconciled at any point over the years.

In fact, his knowledge from his friend was the opposite with respect to the time that ConstanceCandow spent in Deep Bight. His friend advised him that they were not cohabitating as husband and wife. [65] When David Strickland observed them together, he described Ms. Candow as being physically present but would not say theywere “together”. I am satisfied that David Strickland’s relationship with his friend was such that had the Candows reconciled, he wouldknow about it. There was no reason for David Candow not to tell his friend as he was also on good terms with Constance Candow.

[ 66 ] I am satisfied that it is appropriate to consider statements made by David Candow in this context. The application by Ms. Candow seeking an interest in the Deep Bight House was brought after his demise. He is not here to speak for himself. As Mr. Candow is deceased, there is a high degree of necessity to admit these statements. Furthermore, I find these statements to be inherently reliable in that they were made before the dispute before the Court arose and were made to trusted friends, to whom he would have no reason but to be forthright. As such, to exclude these statements would result in an injustice.

The Reason for Shared Occupancy [ 67 ] I have considered the evidence regarding the reason Ms. Candow came to Deep Bight. Ms. Candow’s evidence was not consistent on this point. In her affidavit she said it was because David Candow was depressed and she was going there to assist him. On cross-examination, she said she went there in hope of reconciliation. Arguably, these are not contradictory. The other witnesses understood she was in Deep Bight because she was experiencing financial difficulties and needed a place to stay. Ms. Candow denied that this is why she came to Deep Bight.

She claimed that she had been working two part time jobs before she left Ontario. Those jobs are not included on the work history provided in her affidavit. According to her affidavit, she last worked in Ontario in 2010. Ms. Candow acknowledged that she had sold her townhouse because she was finding it difficult to maintain it financially and otherwise.

Ultimately when pressed on this the point in her evidence she stated that she and David were both having financial problems at the time of her coming to stay in Deep Bight. [ 68 ] Edward Strickland described his friend as a “Good Samaritan” and that Constance Candow came to Newfoundland in 2012 because she contacted David and asked if she could come when she had nowhere else to go. David Strickland testified that he had been told similar reason by both David Candow and Constance Candow. [ 69 ] The content of Ms.

Candow’s letter of May 18, 2014 is more consistent with the evidence of David Strickland and Edward Strickland on this point; that the reason Constance Candow came to stay in Deep Bight was because she was having a difficult time and David offered to assist her by allowing her to stay with him. Ms. Candow apologized in the letter to Mr. Candow if she treated him in a bad way during her stay with him and acknowledged that she may not have appreciated what he had tried to do for her. Again, these are her words closer in time to the actual events then her evidence in this action.

These words are more consistent with the evidence of the other witnesses: that she came to Deep Bight because it was she who needed assistance, not David Candow. This is relevant to the nature of the relationship but also goes to Ms. Candow’s credibility in providing her portrayal of the relationship. Fidelity [ 70 ] In Nearing v. Sauer , 2015 BCSC 58 the Court did not accept that periods of the husband returning to reside in the family home were attempts at reconciliation by the parties.

In making this determination, the Court considered that the wife was dating other people and that the husband was aware of her involvement in other relationships. [ 71 ] I accept the evidence that during the time that Ms. Candow was in Deep Bight, David Candow was involved in a relationship with Kelly Lane who resided in Nova Scotia. Edward Strickland testified that his friend had mentioned moving to Nova Scotia to be with Ms. Lane. This is supported by the May 18, 2014 letter that Constance Candow wrote to Dave Candow when she inquired if he planned to move to Nova Scotia.

I do not accept her evidence that this inquiry was not in relation to any planned move to be with Ms. Lane. Ms. Candow’s evidence was that Ms. Lane spoke to her at David’s memorial service in Ontario and thanked her for being with David in Deep Bight. It would seem odd for someone other than a significant other or family member to offer such thanks and perhaps even more peculiar if Ms. Candow were with Mr. Candow in Deep Bight as his wife, for anyone to thank her for being there. The Aftermath of Ms. Candow’s Stay in Deep Bight [ 72 ] Ms. Candow’s evidence was that she and Mr.

Candow had reconciled while she was in Deep Bight and that she only left because she was concerned about their son. It was her intention to return when things settled down and that she would retire in Deep Bight with her husband. This does not ring true in that it is not consistent with the preponderance of the evidence nor is this consistent with her own actions and words in the aftermath of having left this province in several respects. [ 73 ] Firstly, Ms. Candow advised Service Canada that she and David Candow separated on January 25, 2014, the time she departed Deep Bight.

This is not consistent with her claim that when she left they were reconciled and the plan being that she would be returning to this province, with the intention of retiring there, once their son was settled. [ 74 ] Secondly, in the May 18, 2014 letter she advised David Candow that their son was fine and yet there is no discussion in the letter of any intention on her part to return to this province. Rather she writes that she is making plans to stay in Ontario as she is getting settled into another apartment and continuing to seek full time work in Ontario.

She further wrote of not having been happy in Deep Bight and feeling “closed in” while residing there. Stella Kane testified that Ms. Candow had told her while she was still in Deep Bight that she was returning to Ontario because she “felt isolated” in Deep Bight. Ms. Candow only acknowledged feeling isolated in Deep Bight after the content of the letter was put to her.

This does not fit well with her evidence that she intended to return to Deep Bight on a permanent basis once their son was settled. [ 75 ] The tone and content of the letter, when read as a whole, provides insight into the nature of the relationship of the parties while they were sharing occupancy in Deep Bight and in the four months immediately after her departure. These are Ms. Candow’s words much closer in time to the period of shared occupancy and before Mr. Candow’s death. The letter does not portray a reconciled couple or a relationship consistent with that claimed by Ms. Candow after Mr.

Candow’s death. [ 76 ] Thirdly, is the fact that the parties had little contact over the ensuing months and years after her departure from Deep Bight up to the time of Mr. Candow’s death. Ms. Candow’s first contact with him after leaving, according to the evidence adduced, was the letter four months later. Her affidavit refers to calling him in October 2015, to inquire about returning to Deep Bight and another telephone call in April 2016. She also mentioned in her evidence to having sent cards but the times of this were not clear other than one that she sent when she learned of his illness.

The infrequency of contact and nature of these communications are not consistent with a couple who had reconciled.

David Candow’s Obituary [ 77 ] David Candow’s obituary, which was prepared by his family, referred to him as being survived by his son and daughter and his siblings. There was no mention of Constance Candow. While I do not place a lot of weight on this, it can be inferred from this that the family of David Candow did not consider the Candows to have reconciled or that Constance Candow was a significant person in David Candow’s life at the time of his death. Ms. Candow’s Application for Division of Canada Pension Benefits [ 78 ] Ms.

Candow testified that she “always felt that we were going to be back together again” and at times in her evidence, Ms. Candow stated that they were never really separated and when pushed she would say that she did not understand the difference between being separated and being formally separated. However, she clearly identified to Service Canada periods of separation in the application for division of pension benefits. [ 79 ] After Mr. Candow’s death, Ms. Candow applied to Service Canada for the division of Canada Pension Plan pension credits as a result of the dissolution of the marital relationship.

Correspondence from Service Canada dated December 13, 2016 to David Candow’s estate was adduced into evidence. It stated, in part: We understand that Mr. David J Candow and Constance Candow lived together from Sept. 1, 1973 to January 25, 2014 and that they were separated from January 1, 2001 to August 1, 2008, August 1, 2011 to August 1, 2012 and January 25, 2014 to September 14, 2016. Please confirm these periods by completing and returning the attached statement in the envelope we have provided. [ 80 ] Ms.

Candow did not dispute having given these dates to Service Canada and acknowledged that the dates provided did not coincide with the dates in her affidavit or in her testimony. For example, Mr. Candow left the matrimonial home for the first time in 1998 and not January 1, 2001. The dates given to Service Canada would also indicate that the Candows were separated from January 1, 2001 to August 1, 2008.

This is contrary to paragraph 16 of her affidavit where she stated that from 2002 to 2008 while David was returning to Ontario for work, he would stay with her for short periods of time and when they were together, they lived as husband and wife. The dates provided also mean they were together from August 2, 2008 to July 31, 2011. Ms. Candow did not, however, claim at any point in her evidence that they were reconciled for a three-year period. The dates provided would also indicate that they had separated after she returned to Ontario in January 2014 and would have been separated for two years prior to his death.

As noted elsewhere, this is contrary to her evidence that her departure from Deep Bight in January 2014 was with the intention of returning permanently to retire there. [ 81 ] Ms. Candow testified that she must have been confused in providing those dates to Service Canada and said the dates she gave in her affidavit were the accurate dates. The fact that she claimed periods of reconciliation might be seen as corroborating that they had reconciled for periods of time over the years.

It is troubling, however, that she could simply claim to have been confused in providing these dates when the dates would be crucial to the pension division. These discrepancies without adequate explanation adversely affect her credibility. How the Candows Governed their Affairs Post-1998 [ 82 ] I have also considered how the parties governed themselves in terms of their financial affairs over the years after 1998 and how they referred to themselves in documents. A couple of years after the separation in 1998, Ms.

Candow stated that they divided the proceeds of their matrimonial home and its contents to their mutual satisfaction and closed their joint bank account. Ms. Candow bought a home in Ontario and sold it in 2011. She made this decision to acquire and sell of her own accord. David Candow bought and sold two homes in Ontario. Neither party asserted any claim to the properties held by the others. I also have considered that Ms. Candow never asserted a claim to the Deep Bight House during David Candow’s lifetime. [ 83 ] Furthermore, on January 13, 2014, David Candow put in place a mortgage on the Deep Bight House.

In doing so, he swore a standard form affidavit pursuant to the Matrimonial Property Act (the precursor legislation to the Family Law Act ) [2] indicating that he was not a spouse at the time of making the mortgage. At that time, Constance Candow was either still staying at Deep Bight or had just recently left. Mr. Candow did not discuss with her any intention of entering into a mortgage of the property and she had no knowledge that this had happened. In fact, her evidence was that he was private about his financial affairs while she was staying with him and he would not disclose to her the value of the property.

I accept this as an indication of David Candow’s state of mind in terms of his relationship with Ms. Candow. While the Candows had never divorced, and technically he remained a ‘spouse’, in January 2014, David Candow did not consider himself to be a spouse and did not consult Ms. Candow with respect to how he dealt with the Deep Bight House. Just as both parties had done with previous homes they acquired after 1998, he felt free to deal with the Deep Bight House as he alone saw fit. [ 84 ] The evidence demonstrates that Ms. Candow had little knowledge of David Candow’s assets over the years after 1998.

Up to the time of swearing the affidavit in this matter, she believed David Candow rented the property on Mary Street and gave this up when he purchased the Deep Bight House in 2002. She was unaware that he in fact owned that property. Her lack of knowledge of his assets, or his place and manner of residence, is not consistent with her claim that they continued to reside periodically as husband and wife over the years. CONCLUSION [ 85 ] Overall, having assessed the totality of the evidence and the credibility of the witnesses, I do not accept Ms.

Candow’s evidence that the nature of her shared occupancy with David Candow in Deep Bight was as husband and wife. I accept the evidence of the other witnesses that she came to Deep Bight because she was going through a difficult time and David Candow offered to assist her (as he did similarly for his sister) by allowing her to stay with him for a period of time. [ 86 ] Constance Candow has a pecuniary interest in claiming to have reconciled with David Candow.

She stands to benefit if she were able to establish that she had reconciled with David Candow and that they resided in the Deep Bight House as a family residence.

Furthermore, there were inconsistencies and discrepancies in her evidence that caused me to question the reliability of her evidence and her credibility. Overall, her story did not fit well with the whole of the evidence. [ 87 ] On the other hand, none of the other three witnesses had anything to gain personally by not being forthright as to their knowledge of the nature of the relationship between Constance Candow and David Candow.

I find that they were forthright in their testimony and in acknowledging any limitations of their knowledge of events. [ 88 ] While David Candow and Constance Candow’s relationship after 1998 was somewhat unusual in that they enjoyed a more cordial relationship than that of most couples post-separation, I do not accept that they reconciled as husband and wife after the separation in 1998. There is no doubt that they maintained an amicable relationship over the years that saw them come together including periods of sharing occupancy.

I accept that up until 2011, during visits to Ontario, David Candow may have on occasion stayed briefly at Ms. Candow’s residence while their children remained residing with Ms. Candow. I find these stays were more for convenience to spend time with the children or to assist one another during economically difficult times as opposed to periods of reconciliation. I also accept the evidence that at one point in time David Candow stayed for a period of time in a separate unit in Constance Candow’s townhouse. I do not accept her evidence, however, that he resided with her for a year between 2009-2010. Ms.

Candow was not able to be precise on this time period and did not explain why Mr. Candow would be in Ontario at that time when he had permanently relocated to this province by then. I accept the evidence of Edward Strickland who was residing in Ontario at that point, that David Candow did not return to Ontario for that length of time after 2007. [ 89 ] I accept the evidence of the other witnesses and their objective perceptions of the Candows as to the nature of the relationship particularly during Ms. Candow’s stay in Deep Bight.

Based on how the Candows presented themselves to the outside world by their words and actions, they were not reconciled as husband and wife. Rather they were sharing occupancy (as they had been on one other occasion) for financial reasons when Constance Candow needed assistance. This is no different than how David Candow treated his sister when she too required a place to live. Therefore, I do not accept that the reason for the shared occupancy in 2012 was for the purpose of reconciliation nor that the parties reconciled during Ms.

Candow’s stay in Deep Bight. [ 90 ] I do not find that Constance Candow was credible with respect to the evidence that she gave regarding the nature of her relationship with David Candow while in this province. The evidence of the communications and the actions of David Candow and Constance Candow while she was in Deep Bight and in the two years subsequent to her departure do not support her version of the relationship.

Nor does the evidence of the other witnesses who I find to have been in a position to more objectively assess the nature of the relationship. [ 91 ] As a result, I do not accept that the Deep Bight House was occupied by them as a family residence within the intent and meaning of

Section 6 of the Act . Rather, David Candow offered Constance Candow a place to stay when she was experiencing difficulties. I accept Edward Strickland’s description of the situation in that she was like a boarder in the house. DISPOSITION [ 92 ] The Deep Bight House is not a matrimonial home pursuant to Section 6(1) of the Act .

Constance Candow therefore has no entitlement to or interest in the Deep Bight House pursuant to the Act. [ 93 ] The other property claimed by Constance Candow in the Originating Application is not matrimonial property pursuant to the Act as these are items acquired by David Candow after separation. Therefore, Constance Candow has no entitlement to this property pursuant to the Act .

In any event, as I have found that the Candows separated in 1998 and did not reconcile thereafter, Constance Candow has not brought the application for division of matrimonial assets within the time limit prescribed by subsection 21(3) of the Act. [ 94 ] Therefore, Constance Candow’s Originating Application under the Act is dismissed. The Estate is awarded its costs pursuant to Column 3. The lis pendens is to remain in place pending the resolution of the remaining issues in this litigation. _____________________________ Sandra R. Chaytor Justice