Dixson v. Moss, 2023 BCSC 1248

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Dixson v. Moss, 2023 BCSC 1248 Date: 20230721 Docket: 20386 Registry: Nelson Between: Gregory Gordon Dixson Claimant And Lynda Joyce Moss Respondent Before: The Honourable Madam Justice Lyster Reasons for Judgment Counsel for Claimant: T.W. Pearkes D. Crossley, Articled Student Counsel for Respondent: J.T.E. Gelber Place and Dates of Trial: Nelson, B.C. November 22-25, 2022 and January 10, 2023 Place and Date of Judgment: Nelson, B.C.

July 21, 2023 Table of Contents Introduction .. 2 Credibility and Reliability .. 3 Onus of Proof .. 5 Facts .. 8 Relationship with Ms. Hamilton .. 17 Evidence about Ms. Ruston .. 26 Evidence about Ms. Kurtz . 30 Analysis .. 35 When did the parties separate? . 35 Is the time limit for filing suspended pursuant to s. 198(5) of the FLA ? . 42 Conclusion .. 45 Introduction [ 1 ] Greg Dixson and Lynda Moss were in a marriage-like relationship for a number of years starting in 1999. The key issue to be decided in this decision is when that relationship ended.

Was it in April 2014, or at the latest July 2015, as submitted by Ms. Moss? Or was it in August 2016, as submitted by Mr. Dixson? Or was it some other date? [ 2 ] The answer to that question may well be determinative of this family law case. Mr. Dixson filed his notice of family claim on

May 28, 2018. If the court agrees with him about when the parties separated, his claim was filed within the two year limitation period. If the court agrees with Ms. Moss about that question, then his claim was filed outside the limitation period. If Mr. Dixson’s claim was filed late, then I must determine a secondary issue, which is whether the limitation period was suspended while the parties were engaged in family dispute resolution. [ 3 ] The parties, with the approval of the court, crafted a hybrid

summary trial process to allow these questions to be decided. Mr. Dixson, Ms. Moss and all but one of their witnesses swore affidavits, and they were all subject to cross-examination on their affidavits. This included Susan Kurtz, a lawyer with whom the parties met in September 2017, and who was retained by Ms. Moss to represent her. The only witness who did not swear an affidavit was another lawyer, Rhonda Ruston, K.C., whom Mr. Dixson met with in January 2017. The lawyers’ notes and correspondence played a significant role in the evidence in this case.

Subsequent to the evidentiary portion of the trial, and before final oral argument, counsel submitted comprehensive written submissions. [ 4 ] Counsel are to be commended for agreeing to these processes, which significantly reduced the court time that would otherwise have been necessary to decide this case. [ 5 ] Mr. Dixson and Ms. Moss’s relationship was unique. He is Canadian and she is American. In the early years of their relationship they lived together in the United States. Subsequently, they lived together in British Columbia. During the period in issue, 2014-2016, they were not living together, as Ms.

Moss was living and working in the United States, and Mr. Dixson was living and working in British Columbia. They never legally married. Credibility and Reliability [ 6 ] The central issue to be decided is when the parties ceased to be in a marriage-like relationship. The nature of their relationship makes the determination of the date when they separated difficult. The credibility and reliability of their evidence, as well as that of the other witnesses, must be closely analyzed to make the necessary findings of fact. [ 7 ] Both parties cited Bradshaw v.

Stenner , 2010 BCSC 1398 , at paras. 186-87 for the principles to be applied in assessing credibility and reliability. It is not necessary to repeat that oft-cited passage, but I have applied the principles it summarizes in assessing the affidavits and oral testimony in this case. [ 8 ] Neither Mr. Dixson nor Ms. Moss were particularly reliable witnesses. They both had very poor memories under cross- examination, often failing to recall details they had sworn to in their affidavits. Both of them have a self-interest in this case: whether Mr. Dixson has a legal interest in the real property held by Ms.

Moss’ in her sole name will likely be determined by the court’s determination of when they separated. That self-interest has caused them both to retrospectively view the events surrounding the dissolution of their relationship through a lens which serves their position in this case. [ 9 ] In Ms. Moss’ case, she swore her affidavit #3 to correct a significant error she had made in her affidavit #2. Under cross- examination, she admitted she had not re-read the erroneous portion of her affidavit #2 before swearing her affidavit #3 correcting it.

In her affidavit #2, she swore that the facts set out in the factual basis of her notice of application were true. Under cross-examination, she said that some parts of it were not true in some respects or were “pretty close to true”. This lack of care in making sworn statements makes me very cautious in relying on Ms. Moss’ evidence, unless it is corroborated. [ 10 ] Mr. Dixson was glib on the stand, answering the solemn affirmation with “you betcha”. If anything, his memory on the stand was even worse than Ms. Moss. I am also very cautious in relying on Mr.

Dixson’s evidence in the absence of corroboration. [ 11 ] All of this makes it difficult to know how much of the parties’ affidavit evidence can be relied upon. In the circumstances, recourse to contemporaneous communications between them and communications to third parties is particularly important in making findings of fact. So too is the parties’ conduct at the relevant times, to the extent it can be discerned on the record.

Of much less assistance is the parties’ retrospective recollections of when they believed they separated, as those recollections suffer from their poor memories, and are almost certainly influenced, consciously or unconsciously, by their present litigation positions. [ 12 ] The credibility and reliability of the non-party witnesses’ evidence is also in issue in this case. I address those issues when I come to the witnesses’ evidence. Onus of Proof [ 13 ] The parties disagree about who bears the onus of proving the date of separation, with each saying that the other bears the burden.

I will address this question next, as the answer to it may inform my findings of fact. [ 14 ] Mr. Dixson submits that Ms. Moss bears the onus of proof. He bases that submission on the fact that Ms. Moss filed the application that resulted in this

summary trial, in which she sought a declaration that Mr. Dixson’s claims are statute-barred by reason of s. 198 of the Family Law Act, S.B.C. 2011, c. 25 , [ FLA ]. He also submits that Ms. Moss, in bringing this application, is seeking to prove a traverse limitation defence, namely that the claim is statute-barred, on which she bears the burden of proof. [ 15 ] Ms. Moss submits that Mr. Dixson bears the onus of proof. She submits that when a limitation defence is raised, the onus is on the plaintiff or claimant to show that their claim is not statute-barred. She further submits that in a

summary trial application, regardless of who is the applicant, it is the plaintiff or claimant who has the onus of establishing their claims. [ 16 ] Ms. Moss submits that commencing the claim within two years of the date of separation is an essential element of Mr. Dixson’s claim for property division and spousal support, and that he therefore bears the burden of establishing that he did so. She further submits that because the FLA , created a new right for common law couples, namely a presumptive right to equal division of property on

separation, Mr. Dixson bears the burden of establishing that he meets the statute’s requirements. [ 17 ] The law is clear that whoever the applicant may be in a

summary trial, the burden of proof remains on the plaintiff or claimant: Gichuru v. Pallai , 2013 BCCA 60 at para. 35 . Therefore, the overall burden of proof lies with Mr. Dixson as the claimant. [ 18 ] The law is somewhat less clear with respect to who bears the burden of proof on the date of separation. [ 19 ] There is no provision in the FLA that explicitly addresses this question. [ 20 ] Section 198 (2) of the FLA provides in relevant part:

(2) A spouse may start a proceeding for an order under

Part 5 [Property Division] to divide property or family debt,

Part 6 [Pension Division] to divide a pension, or

Part 7 [Child and Spousal Support] for spousal support, no later than 2 years after, … (

b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated. [ 21 ] “Spouse” is defined in s. 3(1) to include a person who “has lived with another person in a marriage-like relationship, and (

i) has done so for a continuous period of at least 2 years”. [ 22 ] In Watt v.

Copeland , 2009 BCSC 1485 [ Watt ] at para. 75 , a case under the former Family Relations Act , R.S.B.C. 1996, c. 128 [ FRA ], Halfyard J. held that the plaintiff bore the burden of establishing both that he was in a marriage-like relationship with the defendant for at least two years, and that he brought his action for spousal support within the then existing one-year limitation period. [ 23 ] It is notable that under s. 1 of the FRA , the definition of “spouse” included both the aspect of having lived together for two years in a marriage-like relationship, and the requirement that the application be made within one year of separation.

By contrast, under the FLA , the two aspects are divided, with the requirement to bring the claim within two years of separation residing in a different provision than the definition of “spouse”. [ 24 ] Ms. Moss relies on case law from other jurisdictions in support of her position that Mr. Dixson, as the claimant, bears the burden on the date of separation. These cases begin with Kossakowski v. Sierchio , 1983 CarswellOnt 339 (Ont. Co. Ct.) [ Kossakowski ] .

In that case, the Ontario County Court upheld a decision of the Ontario Provincial Court in which it had been found that the appellant was not a spouse within the meaning of the applicable legislation, which required five years of cohabitation and that the claim be brought within one year of separation. The parties had separated for a brief period during the five years they had lived together. At para. 7 the Court held that the intention of the parties when they separated was the crux of the matter.

As to who had the burden of proving that intent, the Court held at para. 8 that the “applicant dependent must prove continuity and, if there is a break in continuity due to an intervening separation, the burden of proving that that was no intention that the separation be permanent remains with the applicant”. [ 25 ] Ms. Moss also referred to Boothe v. Gore , [1996] O.J. 4376 (Ont. Gen. Div.) [ Boothe ] .

At para. 12 of that case the Court stated that: [12] In an application for support by an unmarried ‘spouse’, the onus is on the applicant to establish the existence of cohabitation over the requisite period of time and, if there is a break in continuity due to separation, the burden remains on the applicant to prove that there was no intention that the separation be permanent. In addition, she relied on Kirk v.

Hackl , 2006 SKQB 526 [ Kirk ], where the Court stated at para. 29 that “where there is a separation, the onus is on the applicant to prove that neither party intended that the separation be permanent.” [ 26 ] As noted by Ms. Moss, in James v. Gillis , 2011 BCSC 826 [ James ] at para. 52 , Watchuk J. referred to these cases with apparent approval. [ 27 ] The question to be determined in each of Kossakowski , Boothe , Kirk and James was somewhat different than the question now before this court.

In each of those cases, the courts had to consider whether a temporary separation was sufficient to bring an end to a marriage-like relationship, not, as in this case, what the ultimate date of separation is. They were also all decided under different legislation than the FLA , as was the British Columbia case most directly on point, Watt , which was decided under the FRA . [ 28 ] In support of his position the limitation period is a defence on which Ms. Moss bears the burden, Mr. Dixson referred to Roberge v.

Huberman , 1999 BCCA 196 , in particular Esson J.A.’s comments in his concurring reasons at paras. 49-52. He also brought to the court’s attention the decision of Macintosh J. in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union Local 2009 v. Ghag , 2021 BCSC 1528 . That decision addressed a no evidence motion brought by the defendants on the basis that the plaintiff’s case was statute barred by being out of time.

At paras. 3-5, Macintosh J. considered several previous authorities in which it had been accepted that a limitation defence was a proper ground for a no evidence motion. At para. 5, Macintosh J. stated that he considered those decisions binding, and that further: [5] … when it is kept in mind that a plaintiff needs to show all the elements of a claim that are placed in issue, including that it is has been brought within time, it is not unreasonable to conclude that a no-evidence motion can proceed on the question of whether the evidence supports the conclusion that the case is statute-barred. As counsel for Mr.

Dixson fairly conceded, those comments do provide some support for Ms. Moss’ position. [ 29 ] Ultimately, I find this court’s decision in Watt of most utility in deciding this issue. In Watt the court clearly decided that the burden is on the claimant to establish the date of separation. While the FRA was differently drafted than the FLA on this point, I do not think that that difference in drafting leads to a different conclusion on onus. The claimant is obliged to establish all elements essential to

their claim. In the case of a person claiming a right to property division on the basis of a marriage-like relationship, this includes establishing that they have brought their claim within two years of the date the parties separated. [ 30 ] I therefore conclude that Mr. Dixson bears the burden of proof on the issue of the date of separation. Facts [ 31 ] In this part of my decision, I recount the evidence about the history of the parties’ relationship, making findings of fact where necessary on points in dispute.

I do so largely chronologically, although I do address some discrete issues, such as the history of Mr. Dixson’s relationship with Toni Hamilton, to whom he is now married, and the parties’ dealings with Ms. Ruston and Ms. Kurtz, out of chronological order. I also deal with the parties’ financial relationship separately, to the extent it is necessary for the purposes of this decision. [ 32 ] I make the prefatory observation that the parties had not completed all pre-trial procedures prior to the hearing of this

summary trial. Ms. Moss complains that Mr. Dixson failed to produce certain documents, while Mr. Dixson says in response that Ms. Dixson chose to set this matter down for

summary trial without seeking those documents from him or third parties. Notwithstanding issues of this sort, the parties agreed to proceed with this

summary trial, and I find I am capable of making the necessary findings of fact on the record before me. [ 33 ] The parties entered into a marriage-like relationship in June or July 1999. At the time they started living together in a marriage- like relationship, they were living in California in a home owned by Ms. Moss. At the time, Mr. Dixson was married to Yvette Dixson, with whom he had four children. Ms. Moss was born in 1949 and was 73 at time of trial; Mr. Dixson was born in 1962 and was 60 years old at time of trial.

The parties’ relative ages were of some significance to their eventual separation, as will be seen. [ 34 ] In 2002, Ms. Moss purchased a piece of property in Meadow Creek, British Columbia (the “Duncan Dam Property”). Meadow Creek is a remote rural community north of Nelson, British Columbia. [ 35 ] Ms. Moss is an American citizen, and was a Canadian permanent resident during the parties’ relationship. Mr. Dixson is a Canadian citizen. Mr. Dixson did not have a lawful right to be in the United States while he was living in California with Ms. Moss, and he was arrested and deported from the United States in 2003.

Ms. Moss followed him to the border, where she picked him up and took him to the Duncan Dam Property. The parties lived at the Duncan Dam Property thereafter. Mr. Dixson claims an interest in the Duncan Dam Property in his notice of family claim. [ 36 ] Because of his deportation, Mr. Dixson was not able to travel to the United States during his relationship with Ms. Moss after 2003. Ms. Moss has adult children who live in California. As I will discuss below, he was able to rectify this situation by March 2017, when he was able to travel to Las Vegas to marry his present spouse, Ms.

Hamilton. [ 37 ] Subsequently, in 2007, Ms. Moss purchased a second property in the Meadow Creek area (the “Meadow Creek Property”). The parties never lived at the Meadow Creek Property, but they worked on renovating it. The Meadow Creek Property was sold in 2018, and the net sale proceeds are held in trust pending the outcome of these proceedings. Until 2019, Ms. Moss retained ownership of her property in Livermore, California. [ 38 ] In her affidavit #2, Ms. Moss says that the parties’ relationship became strained in 2013. At that time, Mr.

Dixson took employment in Grande Prairie, Alberta, which she says she took as an overture to separation. Mr. Dixson agrees that he took a job driving truck in the oil sands in Grande Prairie at that time, and that since the fall of 2013 the parties spent much less time together than they had for the previous 10 years. He says, however, that they remained in a spousal relationship at that time. He acknowledged in cross-examination that Ms. Moss did not want him to go to work in the oil sands, and testified that she wanted him at home all the time. [ 39 ] Ms. Moss went to visit Mr.

Dixson in Grande Prairie between December 30, 2013 and January 5, 2014. She returned between January 28 and February 7, 2014. In her affidavit #1 she said that she made these trips to try to salvage their relationship, and that Mr. Dixson did not give her any assurances that he was committed to continuing a relationship with her. In cross-examination, Mr. Dixson could not recall why Ms. Moss visited him in Grande Prairie, but acknowledged that she did so. [ 40 ] In her affidavit #2, Ms.

Moss says that after her return to British Columbia in February 2014, she found “solid proof that the Claimant was having sexual relationships with other women including prostitutes”. That “proof” was a December 2013 email exchange between Mr. Dixson and a woman advertising escort services on Craigslist. In that exchange, Mr. Dixson tells the woman that he would like to meet up and they discuss fees. In her affidavit, Ms. Moss also says that she was able to access text messages that suggested Mr. Dixson was “fooling around” with other women, but those text messages are not attached as exhibits to her affidavit.

She says that it is essential to her that a relationship be monogamous, and that while Mr. Dixson had cheated on her before, she had forgiven him. There is evidence that Mr. Dixson had, on at least one previous occasion, had sexual relations with someone other than Ms. Moss, and that Ms. Moss was angry and hurt about that. Thereafter, she tended to be suspicious about whether Mr. Dixson was being faithful to her. Mr. Dixson’s evidence was that he was faithful other than on the one occasion he admitted he had “attempted to have an affair” with a neighbour.

I accept that monogamy was an essential component of a marriage-like relationship for Ms. Moss. [ 41 ] Ms. Moss says in her affidavit #2, that in early 2014, it seemed to her that Mr. Dixson was “moving on”, and due to these betrayals of trust, she came to realize that continuing a relationship would be futile, although she did continue to try to change his mind. [ 42 ] Mr. Dixson did not address these parts of Ms. Moss’ affidavit in his affidavit #2, other than to deny having sexual relations with anyone other than Ms. Moss at this time, and to say that Ms.

Moss did not confront him about these issues at that time, but did so later in August 2014. In cross-examination, Mr. Dixson acknowledged sending the emails to a person he believed to be a sex worker, and said Ms. Moss obtained the email exchange from his iPad. He said that he was just playing around on the internet, and had no intention of meeting up with the woman. This is not a persuasive explanation of these emails. It is not necessary to determine if Mr. Dixson did have

sexual relations with the sex worker he communicated with. Clearly, Ms. Moss believed he had done so. [ 43 ] Ms. Moss worked as a nurse for the Interior Health Authority in Kaslo, British Columbia starting in 2006. She left that employment due to downsizing in 2013, with a termination date of February 28, 2014. In her affidavit #2, Ms. Moss stated that she left her job primarily because Mr. Dixson was no longer interested in her and she did not see a future for them together in Canada. [ 44 ] There is no dispute that, in early 2014, Ms. Moss returned to California to live and work.

She returned to Canada intermittently to look after the two properties in Meadow Creek. Mr. Dixson says that she lived and worked in California because the family needed her income to deal with debt, and her adult daughter in California was ill and needed her mother’s support. In cross-examination, Ms. Moss said that her daughter needed her emotional support, but the primary impetus for moving to California was that she could not afford not to work while paying for three mortgages. I accept that all of these were factors in Ms.

Moss’ decision to move to California. [ 45 ] In January or February 2014, the parties went on an overnight outing to Halcyon Hot Springs with their neighbours in Meadow Creek, Scott Lee and Denise Wiens. Mr. Lee and Ms. Wiens moved in next door to the Duncan Dam Property at the end of 2012, and they became well acquainted with both parties. Ms. Wiens testified for Ms. Moss in this trial. Mr. Lee sadly passed away just a week before she did so. Ms. Wiens testified that she had a feeling things were not right between the parties during the Halcyon trip.

She said there was a lack of public display of affection between them. I place little weight on this evidence, as there is a lack of evidence about whether the parties tended to engage in public displays of affection at other times. [ 46 ] In the spring of 2014, Mr. Dixson took motorcycle teacher training in Vancouver. He bought motorcycles in the United States to use in a motorcycle school business he started up in 2014. Ms. Moss assisted Mr. Dixson in importing the motorcycles, personally transporting a number of them over the border to the Duncan Dam Property on April 17, 2014.

She stayed there until May 3, 2014, when she returned to California. [ 47 ] Mr. Dixson permanently removed the motorcycles from the Duncan Dam Property later in 2014. He used them in his motorcycle school. [ 48 ] In her affidavit #2, Ms. Moss says that initially she thought that the motorcycle school was going to be a joint venture, but that Mr. Dixson excluded her from the project once it was up and running later in 2014. Ms. Moss attended motorcycle classes that Mr. Dixson was teaching in Cranbrook on one occasion in 2014. In cross-examination, Mr. Dixson recalled her being there two or three times.

He denied using the words she should not come again, but testified that she was insecure and overbearing while he was trying to teach, and told her he should be doing it on his own without her “camping out there”. He claimed he was very polite about it. [ 49 ] Later in 2014 or 2015, Ms. Moss wanted to come on a long distance motorcycle trip with Mr. Dixson and his son. When asked in cross-examination if he told her she was not invited, Mr. Dixson testified that those were not his exact words, and he could not remember the whole conversation. This is a good example of Mr. Dixson’s poor memory. [ 50 ] Clearly, Mr.

Dixson did not want Ms. Moss involved in his motorcycle school or on the long distance motorcycle trip. [ 51 ] Ms. Moss says in her affidavit #2 that after 2014 the parties never travelled or took a joint vacation together. Mr. Dixson did not respond to this assertion in his affidavit #2, although he suggested in his testimony they went camping. He could provide no details of locations or dates. I accept Ms. Moss’ evidence on this point and find the parties did not travel together after 2014. [ 52 ] In her affidavit #2, Ms.

Moss says that she went to the Duncan Dam Property on July 27, 2014 with her daughter and grandchildren. She met Mr. Dixson there a few days later, and they slept in the same room. She says this was the last time they presented themselves as a couple to anyone. In his affidavit #2, Mr. Dixson agrees that they presented themselves as a couple on this occasion, but disagrees that it was the last time they did so. [ 53 ] Ms. Moss says that when they met at the Duncan Dam Property in July 2014, Mr. Dixson was not living there.

She says she knows this because his clothing and personal effects were not there, there was no food in the house, and the house generally appeared uninhabited. She also says she knows his because Mr. Lee and Ms. Wiens kept her apprised of all comings and goings at the Duncan Dam Property. It is neither necessary nor useful to recount Ms. Moss’ hearsay evidence about what they told her, particularly as Ms. Wiens testified. Ms. Moss says that in the year after their visit in July 2014, Mr. Dixson removed all of the rest of his moveable property from the Duncan Dam Property. [ 54 ] In her affidavit, Ms.

Wiens said that, in or around May 2014, she embroidered a safety vest with his motorcycle school logo on it for Mr. Dixson, and that after this she saw very little of him at the Duncan Dam Property. She saw Ms. Moss at the Duncan Dam Property from time to time, and she and her husband helped maintain the Duncan Dam Property for her in her absence. Ms. Wiens says that in late 2014 and 2015 Mr. Dixson did come to the property a number of times. Before coming, he would contact her or her husband to find out if Ms. Moss was going to be there, and he would only come if Ms. Moss was not going to be present.

She says that he told her he was trying to avoid Ms. Moss. She also says that, in this period, Mr. Dixson would come at night and remove vehicles and other things from the property. Ms. Wiens says that these visits were caught on wildlife cameras. On one occasion, she saw that the lock to the property was broken, and the cameras confirmed that Mr. Dixson had been there. Ms. Wiens also testified about an occasion after she embroidered the motorcycle vest when she saw Mr. Dixson and two other people go to the Duncan Dam Property on motorcycles. She thought the other two people were women.

She asked him about it the next day, and Mr. Dixson told her they were two girls he had met in a bar in Kaslo who needed a place to stay. He asked her not to tell Ms. Moss. [ 55 ] Ms. Wiens’ evidence under cross-examination was quite unclear with respect to when she observed Mr. Dixson coming and going to the Duncan Dam Property. Ms. Wiens and her husband installed game cameras at the gate and the house on the Duncan Dam Property in 2017; Ms. Moss paid for them, and they provided her with access to the images. Some images from those game cameras were admitted into evidence; they appear to show Mr.

Dixson removing items in 2017 and 2018. I place little weight on Ms. Wiens’ evidence of the specifics of Mr. Dixson’s comings and goings. [ 56 ] In his affidavit #2, Mr. Dixson said that he took chattels that he needed to use to earn income and to support his work in the

Boundary area, I infer in 2014. He says he took the Rhino motorcycle, which Ms. Moss says was a gift to her, and left her the Can-Am. He says he removed other items in 2017 or 2018. In cross-examination, he testified that he took some clothes and the motorcycles for his school in 2014, but his main wardrobe and personal belongings remained at the Duncan Dam Property. [ 57 ] Ms. Moss says that as far as she knows Mr. Dixson moved to the Grand Forks area in 2014. She says that he never divulged to her where exactly he moved or where he stored his personal property, in particular his vehicles.

Under cross-examination, Ms. Moss had little real, first hand, evidence or recollection of when Mr. Dixson moved the various items in dispute. I find it was likely a process that took some years, starting in the summer of 2014, and continuing past the point that these proceedings were initiated. [ 58 ] In her affidavit #2, Ms. Moss says that, by the summer of 2014, Mr. Dixson was communicating with her very seldom. On all of the evidence, I accept this is true. Ms. Moss appears to have been the one consistently attempting to initiate communications, and Mr.

Dixson seldom reciprocated, or if he did so, his communications were terse. [ 59 ] In his affidavit #2, Mr. Dixson denies that he refused to tell Ms. Moss where he was living. He says that on one occasion he took her to his apartment in Carmi, British Columbia, on the way from Kelowna to the Duncan Dam Property after he picked her up at the Kelowna airport. In cross-examination, Ms. Moss said that this was a “lie”, that they did not stop. Mr. Dixson provides no other examples of informing Ms. Moss where he was living after the summer of 2014. He testified that Ms.

Moss was never in any of his residences in the Boundary area. I find that Mr. Dixson did not tell Ms. Moss where he was living after the summer of 2014, and that he was living in various locations in the Boundary area. He no longer lived at the Duncan Dam Property after the summer of 2014 at the latest. [ 60 ] Mr. Dixson says of six paragraphs in Ms. Moss’ affidavit dealing with the summer of 2014 that “this is simply false”. It is impossible to know what he is saying is false. I take him to deny that he was no longer living at the Duncan Dam Property at that time.

He goes on to say: We were living separated by the border and life circumstances. She had the freedom to come and go. I was developing work and a business and trying to find a way to buy her out of the Duncan Dam properties which is what she wanted. [ 61 ] Mr. Dixson also says that it is false that the parties never lived together after 2014. He says he was with Ms. Moss for 27 days in December 2014 to January 2015 at the Duncan Dam Property, during which time they had sexual relations. Ms. Moss did not deny spending this time together with Mr. Dixson.

I find it is the last time they spent any significant amount of time in one another’s company. I find that they did not live together after the spring of 2014 when Ms. Moss moved to California, with Mr. Dixson, on an indeterminable date soon thereafter, moving to the Boundary area. [ 62 ] On August 28, 2014, Mr. Dixson emailed Ms. Moss. Insurance coverage for the Duncan Dam Property had been cancelled and he forwarded an email about it to her.

He also said that the “bank cleaned me out yesterday”, which meant that he had no money for a number of things, including expenses related to his daughter’s upcoming wedding. Ms. Moss responded that same day. She was clearly angry. She accused Mr. Dixson of lying and cheating since she moved to Canada. She referred to the December 2013 email exchange with the sex worker. She also said that “maybe you could check in with your little Toni girl and she will front you some money”. Ms. Moss concluded saying “We need to get rid of those properties, split the money and move on.

You have made it quite clear that’s what you want, so I will have to do it”. Relationship with Ms. Hamilton [ 63 ] The reference to “your little Toni girl” is to Ms. Hamilton, the woman to whom Mr. Dixson is now married. I will address here the evidence about the timing of the development of Mr. Dixson’s relationship with Ms. Hamilton. [ 64 ] Ms. Moss learned of Ms. Hamilton when she found some emails and texts between Mr. Dixson and Ms. Hamilton, some time shortly before her August 28, 2014 email to Mr. Dixson. The first was a Facebook message between Mr. Dixson and Ms. Hamilton dated July 13, 2014 in which Ms.

Hamilton wrote to Mr. Dixson, “ya sure if that works for you and you have time. I lost my phone at the river yesterday (sob) so I have a temporary number if you want to call/text me…”. This is obviously in response to some earlier communication which is not in evidence. On July 23, 2014, Ms. Hamilton sent Mr. Dixson a Facebook message giving him her new email address. On July 29, 2014, Ms. Hamilton sent Mr. Dixson a Facebook message in which she wrote “OK you you better check this before you get horizontal (as u say) what r ur plans for tomorrow?”. [ 65 ] In his affidavit #2, Mr.

Dixson says that he cannot reconcile the parties’ time together in July 2014 with Ms. Moss’ angry August 28, 2014 email. It is not difficult for the court to do so. Ms. Moss had found the communications with Ms. Hamilton in the intervening period, and rightly or wrongly, had concluded that Mr. Dixson was having an affair with her. [ 66 ] Ms. Moss attached other Facebook posts from Ms. Hamilton as exhibits to her affidavit. In one, bearing the date August 30, 2015, Ms. Hamilton updated her Facebook profile picture. On the left is a photograph in which Mr. Dixson is standing with Ms.

Hamilton with his hands on her shoulders, and Ms. Hamilton’s hand is on one of his hands. In another, dated November 1, 2015, Ms. Hamilton posted a picture on Facebook in which she is seated on a motorcycle alleged to belong to Mr. Dixson. There is an associated message from Ms. Hamilton in which she appears to say the motorcycle belongs to her “sweetie”. [ 67 ] In her affidavit, Ms. Hamilton denies that she was in a relationship with Mr. Dixson in August 2014. In reference to the July 2014 Facebook messages, she says that she was a student in Mr. Dixson’s motorcycle school. Ms.

Hamilton further denies that she was in a relationship with Mr. Dixson in July 2015. She says that in the photograph of her sitting on a motorcycle she was referring to her motorcycle as “sweetie”, and that this post had nothing to do with Mr. Dixson. In reference to the updated Facebook profile, Ms. Hamilton says that the photograph of her standing with Mr. Dixson was taken in April 2019, and that she added it to her profile at that time. I note that I accept Ms. Hamilton’s evidence with respect to the timing of the updated Facebook profile. [ 68 ] Ms.

Hamilton attended trial for the purposes of cross-examination. Initially, she testified that she first spoke to Mr. Dixson in

2014 when she was looking into attending his motorcycle school, and first met him in person in 2015. She said that when she was looking into motorcycle school she had to phone Mr. Dixson twice before he called her back. She said she ended up taking a course the following year in Cranbrook. [ 69 ] Ms. Hamilton was cross-examined about the July 2014 Facebook messages from her to Mr. Dixson. She was specifically asked about her use of the phrase “before you get horizontal (as u say)”. She said that Mr.

Dixson has a very casual way of speaking and at some point in speaking to him he had referred to getting horizontal to mean going to bed to sleep. She said that they had only talked about motorcycle school, but that they are both very personable and spoke to each other freely and openly. [ 70 ] Ms. Hamilton had not previously been asked to produce any communications with Mr. Dixson. She was asked to look at her phone and see if she could locate any further communications with Mr. Dixson.

Arrangements were made for her and counsel for both parties to meet and search her phone overnight to see if any text messages or emails could be found. Having done so, Ms. Hamilton testified the following morning that, prior to these proceedings, she had deleted everything prior to September 5, 2016. She also testified that all emails between her and Mr. Dixson at the email address he was using at the time prior to 2017 had also been deleted. [ 71 ] It was put to Ms. Hamilton that she would not have communicated with Mr.

Dixson in the manner she did in the July 29, 2014 message if she knew him to be married or in a long term relationship at the time. She said that she could not say she would not have. She knew at the time that he had a significant other as he talked about her, and the fact she went back and forth to California, and had grandchildren. She also told him that she was married but separated at the time. She did not specifically remember him using the term “horizontal”, but said that he must have done so because they talked about motorcycle school several times. For his part, Mr.

Dixson testified he could not remember stuff that far back. Clearly, they talked about more than motorcycle school in July 2014. [ 72 ] Ms. Hamilton testified that in July 2014 she was working for Interfor Corporation (“Interfor”) in Grand Forks. She thought she started there in November 2013 and left in July 2017. In July 2014 she was also waitressing on a casual basis at a pub in Grand Forks. Prior to starting at Interfor, she was employed on a full time basis at another pub in Grand Forks. She initially denied having any contact with Mr.

Dixson after July 2014 until she called again in 2015 to ask when she could take a course, although she said it was possible there could have been some messages. [ 73 ] Ms. Hamilton then acknowledged that she could have seen Mr. Dixson at Interfor in 2015. She recalled that she would sometimes hear him on the radio when he was coming to the mill. She did not think she saw him other than in passing at Interfor. She also acknowledged that in 2014-15 he would have seen her waitressing at the pub, and that she would have gone over to say hi.

She also would have seen him in the other Grand Forks pub, in the capacity of a fellow patron. On the evidence, I find that Ms. Hamilton met Mr. Dixson in person in 2014, not 2015 as she initially testified. [ 74 ] It was put to Ms. Hamilton that she had more of a relationship with Mr. Dixson in between 2014 and early 2016 than she had previously let on in her cross-examination. She responded that counsel did not ask her enough questions. I find that Ms. Hamilton understated the extent of her social interactions with Mr.

Dixson in that period until she was specifically probed about particular locations in which she would have interacted with him. Her affidavit did not provide the full picture of the development of their relationship. [ 75 ] Mr. Dixson and Ms. Hamilton got married in Las Vegas on March 13, 2017. Ms. Hamilton testified that Mr. Dixson had obtained a waiver for an unrelated reason that allowed him to travel to the United States for a period of time. After their wedding, he pursued a waiver which permitted him to travel to the United States on an ongoing basis. [ 76 ] In her affidavit, Ms.

Hamilton says that their sexual relationship started on the date of their marriage. She further says that from her perspective, their relationship as an exclusively committed couple began in September 2016, and they became engaged on December 18, 2016. [ 77 ] In cross-examination, Ms. Hamilton testified that Mr. Dixson did not move in with her until after their wedding. Before that, while they were a couple, she testified that he stored some bikes at her property, and used her address to receive mail, but denied that he ever spent the night there. [ 78 ] Ms. Hamilton testified that her relationship with Mr.

Dixson developed beyond the friendly relationship she had described in the end of summer 2016. They were speaking more frequently. Her divorce had been finalized in 2015, so she was free. Mr. Dixson mentioned to her that things were deteriorating with his spouse and that they were working on dividing assets. Ms. Hamilton understood it was just a matter of ironing out the details, then he would be single. [ 79 ] Ms. Hamilton testified that she is a Jehovah’s Witness, and that part of her faith involves a belief in the sanctity of marriage. As a result, she could not live together with Mr.

Dixson while either of them was married. Once neither of them was “married”, they quickly got engaged and married, and shortly after that bought property with Ms. Hamilton’s inheritance. [ 80 ] In his affidavit #2, Mr. Dixson says that his relationship with Ms. Hamilton began in the late summer of 2016, not before. In cross-examination he testified that he moved in with her only once they were married, and that before that he only stored motorcycles at her home. He could not recall when he began storing motorcycles there, but said it was sometime in 2016. [ 81 ] Mr.

Dixson testified that he was communicating with Ms. Hamilton “some” in 2014. He testified he was unable to produce any texts or emails with her, because his phone was “hacked” and he lost everything before 2019. [ 82 ] Mr. Dixson sent Ms. Moss a text which counsel agree was sometime between January and September 2017; the date cannot be made out in the copy before the court. In that text, Mr. Dixson wrote that it was Ms. Moss’ refusal to put his name on title that “pushed him to move on”. He wrote that “long before there was someone else in the picture, our relationship was over and we both know that.

You also chose to live in another country and maintain a life separate from me…”. He was asked if the “someone else” was Ms. Hamilton, and he agreed that it was. He was asked if he had been involved with her since the summer 2016, which he did not really answer. He was asked if they were engaged in December 2016, to which he said, it goes fast. He was asked if they were romantically

involved since the summer of 2016, which he denied because she was adamant about not having anything to do romantically with him until everything was cut and dried. He acknowledged seeing her at the mill or at the pub. When pressed as to when he was in a committed relationship with Ms. Hamilton, Mr. Dixson said he thought it was probably a month or two or three before the engagement that he decided to propose. He was asked what happened in September or October, to which he said he wanted to take it further, and if he was going to, they had to be married.

He wondered if there was something in September, and said that at Thanksgiving Ms. Hamilton announced to her parents they were seeing one another. When it was put to Mr. Dixson that his asserted date of separation, August 2016, was not “long before” September 2016, he really did not have an answer. [ 83 ] Ms. Moss submitted that Ms. Hamilton and Mr. Dixson’s evidence about deleting texts and messages rises to the level of spoliation, that is, that they destroyed them intentionally with the intention of defeating a claim.

It is not necessary for me to decide this question, and I decline to do so. [ 84 ] I find that Mr. Dixson told the truth in the undated text to Ms. Moss he was cross-examined about. The parties’ relationship was over long before Ms. Hamilton came into the picture. And Ms. Hamilton came into the picture, albeit without a sexual component to their relationship, long before September 2016. [ 85 ] I conclude that Mr. Dixson and Ms. Hamilton started to develop a friendship in July 2014. Due to her faith, Ms. Hamilton would not live with him or have intimate relations with him until they were married.

They did not, however, go from having no relationship at all in August 2016 to being in a committed relationship in September 2016. They were developing their relationship significantly prior to that, but without any sexual component until their marriage. [ 86 ] Returning to the chronology of events, in September 2014 the parties attended Mr. Dixson’s daughter’s wedding in Balfour, British Columbia. They disagree about the manner in which they did so. Mr. Dixson says in his affidavit #2 that they shared accommodations. He attaches photographs of them both with the wedding party. Ms.

Wiens attended this wedding, and says in her affidavit that it was the last time she ever saw the parties together. In her evidence at trial, Ms. Wiens testified that Ms. Moss was basically on her own at the wedding, that Mr. Dixson ignored her, and they were not presenting as a couple. Ms. Moss testified about this wedding at trial. She said that Mr. Dixson’s daughter wanted her in the photographs, but Mr. Dixson did not. Mr. Dixson denied that assertion in his evidence. [ 87 ] It is clear that there were significant tensions between the parties by September 2014, as evidenced by Ms. Moss’ August 28, 2014 email.

Doubtless those tensions were evident at Mr. Dixson’s daughter’s wedding. [ 88 ] Between October 7 and December 19, 2014, Mr. Dixson was employed as a trucker out of Beaverdell, a community about 120 kms west of Grand Forks. In his affidavit #2, he says in this connection that he lived in Beaverdell in this period, and that “I did not move out of the Duncan Dam Property and then find work, I found work and lived where I was working, just like Ms.

Moss.” He worked for a number of employers in the Boundary area after that, hauling logs to a number of mills, working and living in Christina Lake, Grand Forks, Rock Creek, Midway and Greenwood. [ 89 ] In her affidavit #1, Ms. Moss says that the parties separated in July 2015. The basis for that separation date is not stated in that affidavit. She does say that they were never intimate after July 2015. [ 90 ] Ms. Moss identified a July 28, 2015 email from her as the first time she made clear in writing to Mr. Dixson that she accepted the relationship was over. The email is lengthy and difficult to summarize. Ms.

Moss wrote that she had come 1200 miles to once again “try to figure things out”, but she was continually slapped in the face by Mr. Dixson’s bullying, put downs and desire not to be around her. She said that “this month is my last try at this”, and that “if you don’t want to try then we need to quit trying and undo the last 15 yrs together”. She suggested Mr. Dixson must have another woman, and said “so want to get a lawyer together and get it over before winter”. She says the property needs to be sold so Mr. Dixson can buy his truck and move on with his new relationship, and be rid of her. She asks Mr.

Dixson to respond. She ended “Something has to give, one way or another. I am ready for whatever, just the truth that is in your head and heart. My flame is dim, way too sensitive to go on like this”. [ 91 ] There is no evidence that Mr. Dixson replied to this email. [ 92 ] While Ms. Moss did not want her relationship with Mr. Dixson to be at an end, it is quite clear from her July 28, 2015 email that she believed it was over. [ 93 ] On August 1, 2015, Mr. Dixson’s nephew got married at Meadow Creek. Both parties came to the Duncan Dam Property to attend the wedding. In her affidavit #2, Ms. Moss says that Mr.

Dixson stayed there briefly and left on August 3, 2015. She denies any intimate contact on this occasion, says they slept in separate bedrooms, and did not present themselves as spouses. [ 94 ] Mr. Dixson provided emails between the parties from later in August 2015. They refer to having had dinner and a movie night. Ms. Moss expresses disappointment they had not spent more time together. She tells him she loves him and misses spending time with him. She asks him if he will go to Mexico with her in the winter.

She also complains that he will not answer her phone calls, and says she will not call or email him anymore, while he complains of “guilt trips”. [ 95 ] In September 2015, Mr. Dixson’s brother-in-law died. Ms. Moss says in her affidavit #2 that the funeral was in November, but little turns on that. Mr. Dixson came to Meadow Creek to attend the funeral. She says that he stayed till the next day, and that they had no intimate contact, slept in separate rooms and did not present themselves as spouses. She says that this is the last time she saw Mr.

Dixson outside of the context of this legal proceeding. [ 96 ] On February 1, 2016, Mr. Dixson filed his income taxes for the preceding two years. While he did not remember why he did so, it seems likely it was because he was starting up his trucking business then and needed to get credit to buy his truck. The returns were prepared by a local accountant. In his 2014 return, Mr. Dixson stated his marital status was single as of December 31, 2014. Similarly, in his 2015 return, he also stated he was single as of December 31, 2015.

His 2016 return, which was prepared June 15, 2017, lists himself as divorced as of December 31, 2016. In explanation, Mr. Dixson said that both he and Ms. Moss always listed themselves as single in

their tax returns. He was asked whether these were the first tax returns he ever filed in Canada. Mr. Dixson did not know, but said if he worked, he filed. He said that he supposed he had made a misrepresentation to CRA. He tried to suggest that Ms. Moss did not want him to file as married or common law, but acknowledged she was not telling him how to file when he filed his taxes in February 2016. As for why he listed himself as divorced in his 2016 return, Mr. Dixson guessed he did not give it much thought, but he was no longer with Ms. Moss in 2017. [ 97 ] Mr.

Dixson’s evidence about his tax filings was unsatisfactory. His evidence about them undercuts his credibility generally. Further, the filings themselves are good evidence that Mr. Dixson considered himself to be single as of the dates he represented himself to be so. [ 98 ] Ms. Moss continued to seek to communicate with Mr. Dixson. For example, on February 24, 2016, she texted him saying she had not seen him since November and wanted to meet in person so they “can figure things out”.

On March 26, 2016, she texted him, saying that: So I just want to NOT think of you anymore, want to get rid of anything and everything we EVER had together and erase it from my memory forever. Almost 3 years been in this craziness with you, time to STOP. Move on with your new person whoever that may be, and I will be gone forever! Thanx for the good times, they are just gone. Good nite. [ 99 ] On April 21, 2016, Ms. Moss emailed Mr. Dixson to congratulate him on how far he had come with his businesses.

She said she was proud of him, “But my staying away to work and pay most of the bills so you could build your money for the businesses has caused me to lose you to someone else and you no longer have any interest in me”. Mr. Dixson replied on April 22, 2016. He wrote about property issues, in particular wanting his name on title, and his need to continue moving forward. He ended saying “Sorry it has had to turn this way…I just don’t know what other way to go/do.” Ms. Moss replied on May 30, 2016. It is an emotional email in which it is clear that she believes Mr.

Dixson is in a new relationship and that she has been cut out of his life. In an intervening email, dated May 12, 2016, seemingly not part of the same thread, Mr. Dixson wrote to Ms. Moss. It too is an emotional email in which he discusses borrowing money to repay Ms. Moss’ borrowed money. He says he needs his freedom and knows she is hurt. He also mentions that the age difference between them has come into play. [ 100 ] It is clear to me that the parties’ marital relationship was over before May 2016. The content and tone of these emails allows for no other conclusion. [ 101 ] Mr.

Dixson says in his affidavit #2 that he ended the parties’ relationship in the late summer of 2016, and that Ms. Moss did not do so at any time prior to that. For the reasons I have already provided, I do not find that he ended the relationship in August 2016. The relationship was over by May 2016 at the very latest. [ 102 ] Mr. Dixson also says in his affidavit #2 that the parties last had sexual relations in August 2016. In cross-examination, Ms. Moss said that she did not recall if they did.

When it was put to her that she had sworn an affidavit in April 2022 in which she had sworn that they last had sexual relations in July 2015, she said she could not remember. Ms. Moss’ evidence on this point was very weak. It is entirely possible that the parties did have sexual relations one last time in August 2016. The only other evidence of them doing so during the period in dispute is Ms. Moss’ evidence that they did so in July 2015 and Mr. Dixson’s that they did so in December 2014/January 2015.

If they did have sexual relations in August 2016, it was for the first and only time in over a year. [ 103 ] On September 2, 2016, Mr. Dixson wrote Mr. Lee an email in which he told him that he and Ms. Moss were no longer a couple. Ms. Wiens agreed in cross-examination that this was the first time they learned, “officially”, that the parties were no longer a couple. Evidence about Ms. Ruston [ 104 ] On January 27, 2017, Ms. Ruston sent Ms. Moss a letter on her law office letter head. It is headed without prejudice. A redacted version was admitted in evidence that shows the opening sentences.

They read: It is my understanding that you and Greg have been separated now for over a year, that the two of you have spoken a bit about diving property, but that conversation appears to have stalled out. He has sought my assistance to try and facilitate that conversation and I will be representing him in that regard. [ 105 ] In the midst of this

summary trial I heard and decided Ms. Moss’ application for a declaration that Mr. Dixson had waived solicitor-client privilege over the contents of Ms. Ruston’s file. In an oral ruling issued mid-trial, I declared that Mr. Dixson had waived privilege over the question of what date he told Ms. Ruston he and Ms. Moss separated, and that he could be cross-examined on that issue. I further ordered the production of those parts of Ms. Ruston’s file relating to communications between Ms. Ruston and Mr. Dixson about this specific issue. [ 106 ] As a result, Mr.

Dixson was cross-examined about his communications with Ms. Ruston related to the date of separation, and he called Ms. Ruston as a witness. [ 107 ] Mr. Dixson met with Ms. Ruston in January 2017. He could not remember when the meeting occurred or any details of what was discussed. He said it was so long ago he could not honestly remember “how it went down”. He testified that he was quite emotional when he met with her, and he was also rushed. He could not remember telling her he and Ms. Moss were separated or for how long. He could not recall if he was already engaged to Ms.

Hamilton at the time, which is remarkable given her evidence that they were engaged a month before on December 18, 2016. [ 108 ] Mr. Dixson testified he met with Ms. Ruston because she was the parties’ neighbour to the Meadow Creek Property, and “the only lawyer in Kaslo”, other than one other lawyer who was good friends with Ms. Moss. [ 109 ] In his affidavit #2, Mr. Dixson denied telling Ms. Ruston that the parties separated in 2015. He says he told her they separated in

2016. This is inconsistent with his oral evidence in which he had no recollection of what date he told her or even if she asked him when they separated. He testified that he would not have told her they had been separated more than a year because he was “up there hauling logs in the summer of 2016.” How the fact he was in the Meadow Creek area hauling logs relates to whether the parties were separated is far from clear. [ 110 ] Mr. Dixson did not recall seeing or reviewing Ms. Ruston’s letter before she sent it out. [ 111 ] Ms. Ruston testified both in direct and cross-examination. Mr.

Dixson called her as his witness following my ruling. She testified that at the time of her letter she had lived in the Meadow Creek area for about five years, and was a neighbour to the Meadow Creek Property. She came to know Mr. Dixson as a neighbour. She saw him doing renovations on the Meadow Creek Property. She sold her property in November 2015, when she moved closer to Kaslo. She had not seen Mr. Dixson since she moved until he called her in January 2017. He told her the parties had separated, and asked for her help. [ 112 ] Ms. Ruston testified she met with Mr. Dixson at her office on January 16, 2017.

He asked her to write a letter to Ms. Moss. Ms. Ruston reviewed her notes of her meeting with Mr. Dixson, and they were entered into evidence. She testified that the first thing she asked him was when they started living together; she noted his answer as 1999. She testified that she asked him how long they lived together, and he told her 17 or 18 years, which she noted down. She testified that they then started to have a visit, each catching up on the other’s life since she left Meadow Creek. She then got some information she needed for the letter about things like assets and liabilities.

She testified she did not have him review the letter. [ 113 ] In reference to the opening unredacted sentence of her letter, Ms. Ruston testified in direct examination that it was the least important and most inconsequential part of the letter. She said that Mr. Dixson did not give her the information that the parties had been separated more than a year. She said that she never asked him the precise separation date, because the information was consistent with her “lived experience” in Meadow Creek, and she knew that they were still in a spousal relationship when she moved in November 2015. [ 114 ] Ms.

Ruston’s notes state “Sep’d > 1+ yr.” She explained that as a reference for herself that everything had happened since she left. Ms. Ruston testified that she made a mistake in referring to the parties having been separated more than a year in the letter. [ 115 ] In cross-examination, Ms. Ruston testified that she knew the parties were in a spousal relationship in November 2015 because it was a small community, and Mr. Dixson worked on the small house on the Meadow Creek Property fairly regularly. She would see him go past and they would chat.

She testified that what led her to the conclusion that they were still in a spousal relationship was that there was a notable absence of anything to indicate that was not the case. She could not remember how often she had seen Mr. Dixson in the last half of 2015, and was aware he was driving truck at that time. She never saw Ms. Moss with him. She was not aware Mr. Dixson had moved away in 2014, but did know he did a lot of travelling for work. [ 116 ] In cross-examination, Ms. Ruston said that her meeting with Mr. Dixson was quite informal. She almost said she had done it as a favour, referring to Mr.

Dixson having been very kind to her when she was having terrible trouble with a horrible man in Meadow Creek. She corrected herself that the meeting was on January 21, not January 16, as she had testified to in direct examination. [ 117 ] Ms. Ruston testified in cross-examination that Mr. Dixson told her he was living at Ms. Hamilton’s address as of the date of their meeting. In redirect examination, she testified that she could not say if it was his mailing or residential address. Either way, it further illustrates how far along Mr. Dixson and Ms. Hamilton’s relationship was by January 2017. [ 118 ] Ms.

Ruston continued to deny in cross-examination that Mr. Dixson had told her that the parties had, as indicated in her note and letter, been separated for more than a year. She said that would not have made sense according to her lived experience. She testified that because she had seen him now and then before she moved, she thought he was still in a relationship with Ms. Moss. She testified that in her 41 years of practice she has never regretted writing a sentence so much as the first sentence of her January 27, 2017 letter. [ 119 ] Despite Ms. Ruston’s and Mr. Dixson’s evidence to the contrary, I find that Mr.

Dixson did tell Ms. Ruston when they met in January 2017 that the parties had at that time been separated for over year. That is what her note indicates, and it is what she wrote in her January 27, 2017 letter. With respect, her explanations to the contrary make no sense. She did not have any “lived experience” that would allow her to know whether the parties were separated or not. She wrote the note because that is what Mr. Dixson told her. As an experienced family lawyer, Ms. Ruston would have known the significance of the date of separation, and she recorded what her client told her.

That would place the separation, by Mr. Dixson’s own reckoning, and before any issue had been raised about the significance of the date, no later than December 2015. Evidence about Ms. Kurtz [ 120 ] On September 21, 2017, the parties met with Susan Kurtz for a three-way meeting. In her affidavit #2, Ms. Moss had erroneously said that this meeting occurred in April 2018, but she corrected that in her affidavit #3. [ 121 ] In his affidavit #2, Mr. Dixson said that the parties jointly paid Ms. Kurtz to act for them on a referral from Ms. Ruston, and that he made the appointment. According to Mr. Dixson, Ms.

Kurtz was going to prepare a separation agreement for their review based on an agreed upon division of the Duncan Dam and Meadow Creek Properties. He says he remained under this impression until he received Ms. Kurtz’s April 26, 2018 letter, described below. [ 122 ] Ms. Moss was asked about evidence she had given at her examination for discovery on this topic. She was asked if she ever made it clear to Mr. Dixson that Ms. Kurtz was acting for her and her only, adverse in interest to him. She testified at discovery that she did not believe that was her intention or recollection.

She said “I told him that she could act for both of us to put together an agreement”. She agreed at trial that that evidence was true, but that they both wanted to have their own lawyers. [ 123 ] Ms. Moss was asked why she told Ms. Kurtz the parties separated in April 2014. She testified that everything started to happen then or thereabouts, referring to Mr. Dixson’s motorcycle school, him pushing her out of his life, and not wanting to communicate with

her. She said that it was the beginning of the breakdown in their relationship. [ 124 ] Ms. Kurtz swore an affidavit and was cross-examined about her interactions with the parties. Ms. Kurtz is an experienced family lawyer, who works as a collaborative lawyer and family law arbitrator. In her affidavit, she explains that she offers potential clients an initial consult. During such a consult, she usually explains to separating couples the main issues to be resolved, and five possible routes to resolution. She tells them the pros and cons of the various routes, including the costs and likely timelines.

She fills out a chart to illustrate the routes. Ms. Kurtz says that she gives no legal advice in these initial consults if the couple attends together, and that she also elicits no confidential information. Couples often split the cost, and in September 2017 she was charging $300.00 inclusive of taxes for these consults. [ 125 ] Ms. Kurtz says in her affidavit that Ms. Moss retained her and Mr. Dixson retained Ms. Ruston. [ 126 ] Ms. Kurtz also says in her affidavit that both Mr. Dixson and Ms. Moss independently called her office to

schedule an initial consult, and they were scheduled to see her together on September 21, 2017. Ms. Kurtz’ evidence about the meeting in her affidavit was as follows. Ms. Moss arrived as scheduled, but Mr. Dixson did not. About a half an hour later, Mr. Dixson called her office to ask if he could park his logging truck in front of the office, and she told him he could. He arrived at her office 45 minutes after the meeting was scheduled to begin. Once he arrived, the parties briefly told her the facts of their property and separation. Mr. Dixson told her they separated in July 2015, and Ms.

Moss that they separated in April 2014. They discussed the properties and how they could be divided. Ms. Kurtz told them they could retain her as a mediator, but they did not agree to do so, and she did not conduct a mediation. Before they concluded the meeting, Mr. Dixson interrupted her to state that he had no interest in mediation or any other kind of conflict resolution process, to demand that he get one of the parties’ houses free of mortgage debt, and to say he was late and had to leave. It was agreed by all three that there would be no mediation, that Ms. Kurtz would represent Ms. Moss, and that Ms.

Kurtz would send a settlement proposal to his lawyer. Mr. Dixson agreed. She estimates that Mr. Dixson was in her office for no more than 15 minutes. Each of Ms. Moss and Mr. Dixson paid $150.00 for the initial consult. After he left, Ms. Moss remained, and they had further discussions for an hour, at the end of which she decided to retain Ms. Kurtz to attempt to negotiate a settlement agreement. Ms. Moss paid her an additional $300.00 for her individual appointment. She signed an individual retainer agreement, and paid a retainer of $2,000.00 on September 29, 2017. [ 127 ] Ms.

Kurtz says in her affidavit that she intended to write a letter to Mr. Dixson care of Ms. Ruston after the meeting, but she understood from Ms. Moss that relations between the parties were becoming increasingly tense, and she never received instructions to send a settlement proposal. [ 128 ] Ms. Kurtz attached notes to her affidavit, which she says are from the initial consult with both parties. [ 129 ] Ms. Kurtz’ file was produced, with the consent of Ms. Moss, for the purposes of her cross-examination. In cross-examination, she testified that she spoke with Ms. Moss before Mr.

Dixson got there, spending approximately 15 minutes together. She identified an intake form that Ms. Moss filled out before they started talking. On it, Ms. Moss wrote that the parties separated April 2014. Ms. Kurtz testified that she went over the intake form line by line when both parties were there. Ms. Kurtz wrote in “he says 2015 July”, which she testified she wrote in after Mr. Dixson arrived, as he did not agree with the April 2014 date. [ 130 ] In cross-examination, when asked how he recalled that Mr.

Dixson arrived 45 minutes late, she said that she recalled that he barged in very loudly when there was only 15 minutes left, that he wanted to use the washroom, and was loud and kind of bullying. She said it was very memorable. [ 131 ] In cross-examination, Ms. Kurtz described the joint initial consult session for which she billed both parties as being in the capacity of a teacher. She testified that what she did with these parties, that is having an initial joint session and then being retained by only one of the parties, is something she does all the time in her practice.

She denied that doing so put her in a conflict of interest, although she has since altered her practice to explicitly state she is only a teacher, and to have couples sign a waiver at the end indicating they received no legal advice. [ 132 ] Ms. Kurtz testified that, on the separation dates both parties gave her, they were out of time to file a notice of family claim for property, but said that she did not give them legal advice. When asked when she first told Ms. Moss that Mr. Dixson’s claim would be statute-barred, Ms.

Kurtz testified that she would have told her later on September 21, 2017, when they met separately, that Mr. Dixson did not have a legal claim. She denied that she waited to send a letter to Ms. Ruston in order to make sure two years had passed, but said that Ms. Moss still wanted to offer him more than he was legally entitled to, contrary to her legal advice. That is why it took so long for her to write to Ms. Ruston. [ 133 ] On January 17, 2018 Ms. Ruston emailed Ms. Kurtz, writing that she represents Mr. Dixson, and that he had advised her that Ms. Kurtz mediated an agreement.

She requested a copy of the agreement. Ms. Ruston reiterated that request in an email dated January 29, 2018. Ms. Kurtz replied on February 7, 2018, writing that she was in the process of finalizing the draft separation agreement and would forward it when approved by Ms. Moss. Ms. Ruston emailed Ms. Kurtz on March 7, 2018, asking why it was taking so long, and asking whether, “as the lawyer who sat between both him and Ms. Moss, wouldn’t it be fair and balanced to send a copy of the agreement to both parties?”. On March 8, 2018, Ms. Kurtz wrote that she was awaiting Ms. Moss’ instructions. Ms.

Ruston replied on March 9, 2018, asking for clarification, and specifically whether Ms. Kurtz was “not a neutral mediator who works with both parties?”. On March 17, 2018, Ms. Kurtz emailed to state that she was not the mediator in this case but was Ms. Moss’ lawyer. [ 134 ] When asked in cross-examination why she did not clarify her role earlier in her communications with Ms. Ruston, Ms.

Kurtz said that she was trying to help the parties to come to a final resolution, and was in a conflict with her own client about her advice, which was leading her to hesitate to carry out her instructions. [ 135 ] On April 26 or 27, 2018, Ms. Kurtz finally wrote Ms. Ruston a letter about this matter. There are two versions of the letter in evidence, one with each of those dates. The difference is not material for the purposes of this matter. In it, she wrote that Ms. Moss says the parties separated in April 2014, and that she understands Mr. Dixson says they separated in July 2015. She wrote that either way Mr.

Dixson would have no legal claim to Ms. Moss’ property because it has been more than two years since separation. She did not propose

or forward a draft separation agreement. [136] Ms. Moss had scant recollection of the September 21, 2017 meetings with Ms. Kurtz, or indeed any of her dealings with Ms.Kurtz. [137] Mr. Dixson testified that he never told anyone that they separated in July 2015. He also testified that he did not recall ever tellinganyone that they separated in 2015. He had little recall of the meeting with Ms. Kurtz and Ms. Moss. He did not remember if the date ofseparation was discussed in his presence. [138] Mr. Dixson did recall that after he left Ms. Moss came out and spoke with him in her vehicle. According to Mr. Dixson, Ms.

Mossdiscussed him getting the Meadow Creek Property, and he said let’s get it drawn up. He did not recall any discussion of who would paythe fee, and knew nothing about that. He was cross-examined about the fact that he knows lawyers do not work for free. [139] Mr. Dixson submits that Ms. Kurtz was in a conflict of interest. It is not necessary for this court to decide whether Ms. Kurtzacted appropriately in her dealings with the parties. I find that her email correspondence with Ms. Ruston causes me to doubt thereliability of her evidence.

If it was as clear as she testified that she was never retained by the parties to act as a mediator, one would havethought that she would have clarified that immediately when contacted by Ms. Ruston, rather than failing to so for some months. I findthat it was not clear to Mr. Dixson that Ms. Kurtz was not preparing an agreement for both parties. I am doubtful about the accuracy ofMs.

Kurtz’ recollection of the specifics of her interactions with the parties on September 21, 2017, because I find that she was relying onher “usual practice” rather than her specific recollection of that day, and because I think it unlikely that she could have taken all the stepsshe said she did with both parties in the 15 minutes she said Mr. Dixson was in her office. [140] What I do accept is that Ms. Moss wrote down on the intake form that the date of separation was April 2014, and that Ms. Kurtzwrote down that Mr. Dixson said it was July 2015. It is most probable that the date came directly from Mr.

Dixson, as the evidence doesnot establish that Ms. Moss knew in September 2017 when Mr. Dixson believed the separation occurred. Mr. Dixson is the mostprobable source of that date. Analysis When did the parties separate? [141] In Der Woon v. Zadorozny, 2020 BCCA 95, the Court of Appeal recently discussed the question of mixed fact and law that mustbe determined where the separation date is a matter of dispute. The Court discussed the legal test to be applied as follows: [9] There is no suggestion the chambers judge misdirected himself. The factors he considered closely mirror the factors enumerated inNearing v.

Sauer, 2015 BCSC 58 and applied in C.P. v. K.W.A., 2018 BCSC 332. In Nearing, Fleming J. wrote: [56] … Typically when the parties dispute the date of separation, the court’s analysis focuses on the generally accepted characteristics ofmarriage including the intention to remain married, having sexual involvement, carrying on activities in public, sharing financialresources and sharing significant family events: [Sachdeva v. Sachdeva, 2013 BCSC 313] at para. 87. The court will also consider arange of other factors, including a clear statement by one of the parties of his or her desire to terminate the relationship.

Sexualinvolvement, or lack thereof, is not conclusive: Newth v. Booth, 2011 BCSC 317 at para. 17. [10] I agree with that description of the focus of the court’s analysis. The factor relied upon by the appellant, the contribution tohousehold finances, is but one of the factors to be weighed and certainly would not overwhelm what is referred to in Nearing as the“generally accepted characteristics of marriage” which were considered by the chambers judge. As Groberman J.A., for this Court notedin Weber v.

Leclerc, 2015 BCCA 492 at para. 25, “a checklist approach is not appropriate” for addressing this question and the trialjudge must look to “indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship”. [11] The question when the parties separated is a question of mixed fact and law. It requires the application of the legal test to the factsas found by the trial judge. [142] Both parties also referred to the decision of Dardi J. in S. (H.S.) v. D. (S.H.), 2016 BCSC 1300.

While that was a decision underthe former FRA, the court referred and relied upon decisions under the FLA in considering the principles that apply to the determinationof whether parties have separated. I find the following

summary of the law helpful in approaching the question of when the partiesseparated: [42] … The Court’s task is to assess objectively, on the totality of the evidence, whether one spouse held a settled intention to separateand communicated that intention through his or her conduct to the other spouse.

An express statement is only one of the factors forconsideration in what is necessarily a contextual analysis. [43] The Ontario Court of Appeal in Re Sanderson and Russell (1979), (ON CA), 24 O.R. (2d) 429 (C.A.), held, inthe context of a common law relationship, that a relationship has come to an end “when either party regards it as being at an end, and byhis or her conduct, has demonstrated in a convincing manner that this particular state of mind is a settled one”: at 432. This statement wascited with approval by the Supreme Court of Canada in Hodge v.

Canada (Minister of Human Resources Development), 2004 SCC 65 atpara. 42. [44] In Gosbjorn v. Hadley, 2008 BCSC 219, Madam Justice Gray adopted the analysis articulated in Hodge: [142] Using the analysis suggested in Hodge, parties cease to live and cohabit in a marriage-like relationship when either party regardsthe relationship to be at an end, and by his or her conduct, demonstrates in a convincing manner that this particular state of mind is asettled one. [Emphasis added.]

[45] In Nearing at para. 54 , Madam Justice Fleming recognized that there must be a unilateral intention, as well as “action consistent with that intention”. At para. 56, she observes that “a clear statement by one of the parties of his or her desire to terminate the relationship” is one of a range of factors a court will consider in determining whether there has been a separation. In my view, the Court did not endorse the notion that such a statement is necessary. [46] The Court in Weber v. Leclerc , 2015 BCCA 492 , recently considered the definition of “spouse” under the Family Law Act .

The Court reviewed the appellate authorities that have evaluated the characteristics of a “marriage-like” relationship and observed that the jurisprudence has evolved in accordance with the changing societal norms surrounding marriage. The Court must apply a holistic approach, having regard to all aspects of the relationship.

While the Court must consider the evidence expressly describing the parties’ intentions, the Court must test that evidence by considering whether the objective evidence of the parties’ lifestyle and interactions is consonant with those intentions: at para. 23. [ 143 ] The determination of a date of separation can be a somewhat arbitrary exercise. The dissolution of a long-term relationship is often a long and convoluted process.

The Court must attempt to locate the point at which at least one of the parties regarded the relationship as at an end, and by their conduct demonstrated in a convincing manner that that state of mind was a settled one. [ 144 ] In making this determination, s. 3(4) (

b) of the FLA provides: (

b) the court may consider, as evidence of separation, (

i) communication, by one spouse to the other spouse, of an intention to separate permanently, and (ii) an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently. [ 145 ] Ms. Moss submits that it was Mr. Dixson who regarded the relationship as at an end in 2014, or 2015 at the latest. She relies on his communications to Ms. Kurtz and Ms. Ruston of the date of separation. She also submits that his conduct showed that his state of mind was a settled one. [ 146 ] Mr. Dixson submit that this position constitutes a 180 degree turn from the position Ms.

Moss took in her affidavit, in which she stated that she believed the relationship was over in early 2014. He submits that the facts do not support this “spin”. In this regard, he refers to the fact that Ms. Moss spent time in Meadow Creek after 2014, by her own accounting: 56 days between July 27, 2015 and December 31, 2015; 78 days in 2016; and 79 days in 2017. [ 147 ] The court is not a prisoner to either party’s view of the evidence. My task is to determine the date upon which the parties separated. [ 148 ] I deal first with the parties’ communications with one another.

I have already quoted from and summarized a number of texts and emails sent to one another in my findings of fact. The parties’ August 28, 2014 emails are significant. Ms. Moss was angry because she believed Mr. Dixson had cheated on her. She wrote, “We need to get rid of those properties, split the money and move on. You have made it quite clear that’s what you want, so I will have to do it”. [ 149 ] Also significant are the parties’ texts and emails in late March-May 2016. They make it clear that both parties viewed the relationship as over by that period. On March 26, 2016, Ms.

Moss texted “Almost 3 years been in this craziness w

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