2012 NBCA 16, 2012 NBCA 16

COURT OF APPEAL OF NEW BRUNSWICK 102-11-CA K.L.S. (Respondent) APPELLANT K.L.S. (Intimé

e) APPELANTE - and - - et - D.R.S. (Petitioner) RESPONDENT D.R.S. (Requérant) INTIMÉ K.L.S. v. D.R.S., 2012 NBCA 16 K.L.S. c.

D.R.S., 2012 NBCA 16 CORAM: The Honourable Justice Bell The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Be ll L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: June 23, 2011 Appel d’une décision de la Cour du Banc de la Reine : Le 23 juin 2011 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: November 22, 2011 Appel entendu : Le 22 novembre 2011 Judgment rendered: February 23, 2012 Jugement rendu : Le 23 février 2012

Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L’honorable juge Green Concurred in by: The Honourable Justice Bell Souscrit aux motifs : L’honorable juge Bell Dissenting reasons by: The Honourable Justice Quigg Motifs dissidents : L’honorable juge Quigg Counsel at hearing: For the appellant : Ferne M. Ashford For the respondent: Kelly A. Driscoll Avocats à l’audience : Pour l’appelante : Ferne M. Ashford Pour l’intimé : Kelly A. Driscoll THE COURT The appeal is allowed.

The petition for divorce is granted, and the matter is remitted to the trial judge for determination of the outstanding issues between the parties. There is no order of costs. Quigg J.A., dissenting, would have dismissed the appeal. LA COUR L’appel est accueilli. La requête en divorce est accueillie, et l’affaire est renvoyée à la juge du procès pour qu’elle statue sur les autres questions en litige entre les parties. La Cour n’accorde aucuns dépens. La juge Quigg, dissidente, aurait rejeté l’appel.

The following are the reasons delivered by QUIGG J.A. (dissenting) [ 1 ] I have had the benefit of reviewing my colleagues’ reasons for judgment and I agree with the standard of review they identify as having to be met on an appeal of family law cases: considerable deference to the trial judge’s decision, unless there has been material error, a misapprehension of the evidence or an error of law. With respect, however, I do not agree with their conclusion that the trial judge erred in law by giving “undue weight” to one factor when determining whether the criteria contained in s. 8(2) (

a) of the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.), had been met. In my view, this case is an example of why appellate courts should be reluctant to interfere with the exercise of discretionary power by a trial judge in her determination of a family law matter. [ 2 ] This case involves a couple seeking a divorce, corollary relief and a division of marital property. The judge determined they had not met the criterion set out in s. 8(2) (

a) of the Divorce Act : to have lived separate and apart for at least one year. Accordingly, she held she lacked jurisdiction to grant the divorce, order corollary relief or an order for the division of marital property. The relevant portions of s. 8 of the Divorce Act read as follows :

Breakdown of marriage 8.

(2) Breakdown of a marriage is established only if (

a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or […] Calculation of period of separation 8.

(3) For the purposes of paragraph (2)( a ), […] (

b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated (

i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or (ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose. Divorce 8.

(2) L’échec du mariage n’est établi que dans les cas suivants :

a) les époux ont vécu séparément pendant au moins un an avant le prononcé de la décision sur l’action en divorce et vivaient séparément à la date d’introduction de l’instance; […] Calcul de la période de séparation 8.( 3) Pour l’application de l’alinéa (2) a ) : […]

b) il n’y a pas interruption ni cessation d’une période de vie séparée dans les cas suivants : (

i) du seul fait que l’un des époux est devenu incapable soit d’avoir ou de concevoir l’intention de prolonger la séparation, soit de la prolonger de son plein gré, si le tribunal estime qu’il y aurait eu probablement prolongation sans cette incapacité, (ii) du seul fait qu’il y a eu reprise de la cohabitation par les époux principalement dans un but de réconciliation pendant une ou plusieurs périodes totalisant au plus quatre- vingt-dix jours. [ 3 ] In this case, appellant wife had petitioned for divorce on the ground that there had been a breakdown of the marriage by reason that the parties had been living separate and apart for at least a year.

During direct examination, the respondent husband testified that although they had separated in February 2010, they agreed to resume a sexual relationship in May 2010. The trial judge described this in her oral decision:

In his direct examination Mr. [S.] testified that in May 2010, Ms. [S.] approached him about having sexual relations. After discussion about her rules and boundaries that same night, and for the following three consecutive nights they had sexual intercourse.

They continued to have sexual intercourse at both of their residences until February 2011, the month preceding the commencement of trial. [p. 2] [ 4 ] The trial judge concluded: In this case while I accept that the parties separated on February 10, 2010, perhaps with the intention of living separate and apart from each other, I do not accept that that intention continued after they began engaging in sexual relations which were neither infrequent nor occasional, and continued for ten of the eleven months preceding the hearing of the divorce petition. [p. 6] [ 5 ] In her decision, the trial judge identified the provisions of the Divorce Act which are relevant to the ground for divorce pled by the petitioner, as well as the

section which deals with the calculation of the period of separation. She was clear in her finding that neither party took the position that they had resumed cohabitation for periods not totalling more than 90 days with reconciliation as its primary purpose by reason of their sexual relationship between May 2010 and February 2011. The trial judge extensively reviewed jurisprudence and scholarly works respecting the topic.

She correctly stated that much of the jurisprudence provided to her by counsel, as well as cases she found on her own accord, were decided when the 1968 Divorce Act was in effect and the requisite period of separation to establish breakdown of a marriage was three years. Thus, many cases relied upon pre-date the 1985 Divorce Act , which changed the length of time required to meet the ground of “breakdown of the marriage” to one year. [ 6 ] The trial judge indicated she was aware of jurisprudence from other superior courts and the criteria established in some of these cases. She stated: In Dupere v.

Dupere 1974 CarswellNB 187 , Limerick J.A. in a minority opinion adopted the eight criteria set out in Cooper v. Cooper necessary to establish that spouses are living separate and apart under the same roof. One of those is the absence of sexual relations. He added a further criteria which is not relevant to this [proceeding]. In my opinion the parties have failed to establish that they were living separate and apart for at least one year preceding the determination of their divorce proceeding. [p. 6] [ 7 ] Some of the jurisprudence cited by the judge was contrary to that put before her by counsel for the parties.

In Foote v. Foote , [1970] O.J. No. 1655 (H.C.J.) (QL) , it was held that the words “separate and apart” in the Divorce Act meant the parties must be completely divided and withdrawn from intercourse and each other’s society (at para. 12). Thus, where the parties to a divorce action had taken

part in a casual act of intercourse during the separation period, the petition was dismissed. Therefore, it is apparent that conflicting jurisprudence exists at the superior court level nationally, and it was up to the trial judge to determine whether the threshold had been met in the case before her. It is apparent the trial judge made her determination based on the length of the relationship and its intimate nature. As Richard J.A. stated in dissent in Yorke v.

Yorke , 2011 NBCA 79 , 378 N.B.R. (2d) 141: Time and again we have said it is not the role of the Court of Appeal to retry the case or to substitute its own discretion based on the weighing of the evidence. Granted, if the judge commits an error in law or an error in the application of the governing principles, the Court of Appeal is justified to intervene.

In my view, there is no such error in this case. [ para. 66] It should be noted that no jurisprudence from this Court, or other Courts of Appeal were cited on this point, and jurisprudence from superior courts of other jurisdictions did not bind this Queen’s Bench judge. [ 8 ] My colleagues have determined the trial judge erred in law in coming to her determination. I do not agree.

It is apparent from the judge’s decision she was cognizant of the criteria utilized in other courts, applied it and determined, based on the evidence, the parties’ sexual relationship had been ongoing for “ten of the eleven months preceding the hearing of the divorce” (p. 6).

This was a large enough obstacle to impede their claim to have been living separate and apart for at least one year preceding the determination of the divorce. The judge was required to make findings of fact on the basis of the evidence she had before her and concluded they did not meet the statutory criteria. This was a finding of fact that is, in my view, supported by the evidence. This decision should be afforded deference as there is no error of law and no palpable and overriding error was made by the judge.

As Richard J.A. observed in Yorke : […] t his case is a perfect illustration of why considerable deference is owed to a trial judge in family law matters.

The case exemplifies how trial judges are called upon to weigh a myriad of factors and to apply fluid principles such as fairness, reasonableness and equity in making decisions often in the face of incomplete evidence and sometimes in light of very unusual sets of circumstances. […] However, if the judge applies both the right test and acts on the governing principles, the ultimate decision reached by weighing the relevant factors is one that, in my respectful view, must be accorded deference. [para. 73] In this case, the judge applied the proper provisions of the Divorce Act and illustrated that she was aware of criteria found in jurisprudence, but in considering the parties’ relationship, she found they did not meet the requirements to obtain a divorce.

Unlike an analysis of ss. 15.1(4) and 17(4) of the Divorce Act , where undue weight to individual criteria must not be given, this judge had one question to answer: had the parties lived separate and apart for more than one year? Her answer was no. This determination must, in my respectful view, be accorded deference. [ 9 ] In the present case, I find no error on the part of the trial judge that would justify appellate interference.

She interpreted the evidence as a whole and, while it may be that another judge might give more weight to some of the factors the judge was called upon to consider, the fact is that this judge applied the law and considered the relevant factors in coming to her ultimate determination of the issues at hand (see para. 74 of Yorke ). [ 10 ] It is dangerous for an appellate court to begin overturning trial judges’ decisions on the ground that too much or too little weight was given to one factor to be examined. On the other hand, to give no weight, or to ignore a factor is a different matter.

This did not occur in this case. The other problem with which I am concerned is the ability of trial and appellate courts to abrogate the criteria found in s. 8(2) (

a) of the Divorce Act , should they feel the legislation is unresponsive to modern realities. Although we may not always agree with current legislation, it serves a purpose, and it is Parliament’s task to determine what legislation should be enacted and what criteria must be met. In this case, the judge was placed in a position where she had to determine whether s. 8(2) (

a) was met, and reviewed a raft of jurisprudence from superior courts regarding factors to be weighed when determining whether the

section had been met. The trial judge made the decision that it had not. [ 11 ] To conclude, the reasons for decision contain no error in law, no error in principle and no misapprehension of the evidence that would permit appellate interference. For these reasons, I would dismiss the appeal. _______________________________ KATHLEEN A. QUIGG, J.A. The judgment of Bell and Green JJ.A. was delivered by GREEN J.A. I. Introduction [ 12 ] The parties are a separated couple seeking a divorce, corollary relief, and a division of marital property.

In an oral decision dated June 23, 2011, a judge of the Court of Queen’s Bench, Family Division, held that their period of separation had been interrupted, and dismissed the Petition for Divorce. As a result, the trial judge held she had no jurisdiction to make an order for corollary relief, and declined to make an order for the division of marital property. The appellant sought to have the decision set aside

and the matter remitted to the trial judge. On appeal, the majority of the Court was of the view the appeal should be allowed, the divorce granted, and the outstanding issues relating to corollary relief and the division of property remitted to the trial judge. We indicated that written reasons would follow. II. Background [ 13 ] The parties were married on March 31, 2004, and separated on February 10, 2010. There is one child of the marriage, born June 14, 2007.

The respondent filed a Petition for Divorce on March 2, 2010, citing as grounds that there had been a breakdown of the marriage by reason of the fact that the spouses had lived separate and apart since February 3, 2010. At trial, the parties agreed the actual date of separation was February 10, 2010. [ 14 ] In the course of the trial, the respondent testified that in May, 2010, the appellant approached him about having sexual relations.

Certain rules and boundaries were discussed and agreed upon, with the result that the parties engaged in sexual intercourse that night, on the following three consecutive nights, and on various occasions thereafter until February, 2011. Aside from the initial encounters mentioned, there was no evidence presented at trial to establish the frequency of sexual activity between the parties. III. Issues [ 15 ] The appellant attributes the following errors to the trial judge:

(1) Concluding the parties had failed to establish a breakdown of their marriage;

(2) Concluding she did not have jurisdiction to make an order for corollary relief and/or an order for the division of marital property; and

(3) Improperly interpreting sections 8(1) , 8(2) (

a) and 8(3) of the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.), in “determining that the sexual contact between the parties following separation dictated that the parties had failed to establish that they had lived separate and apart for a period of one year preceding their divorce”. [ 16 ] This appeal presents the rather unusual dynamic of having the appellant and respondent in complete agreement on the issues, the arguments, and the desired outcome.

Following the appellant’s submission to the Court, the respondent simply and effectively endorsed what had been presented with the words, “We completely support the appellant’s position”. In short, the parties wished to be divorced, were of the shared conviction that they had been living separate and apart for the requisite amount of time, and were in agreement that the trial judge had erred as outlined above. IV. Law and Analysis A.

The Decision at Trial [ 17 ] The critical passages of the trial judge’s decision are reproduced below: In this case while I accept that the parties separated on February 10, 2010, perhaps with the intention of living separate and apart from each other, I do not accept that that intention continued after they began engaging in sexual relations which were neither infrequent nor occasional, and continued for ten of the eleven months preceding the hearing of the divorce petition.

In Dupere v Dupere 1974 Carswell NB 187, Limerick, JA in a minority opinion adopted the eight criteria set out in Cooper v Coopernecessary to establish that spouses are living separate and apart under the same roof. One of those is the absence of sexual relations. Headded a further criteria which is not relevant to this [proceeding]. In my opinion the parties have failed to establish that they were livingseparate and apart for at least one year preceding the determination of their divorce proceeding. I find their separation was interrupted for the period of eight months between May 2010 and February 2011.

The Petition for Divorce istherefore dismissed. It follows that the court has no jurisdiction to make an order for corollary relief. I make no order for a division ofproperty under the Marital Property Act as it is inextricably entwined with the part of the claim for corollary relief. [p. 6] B. The Standard of Review [18] In P.R.H. v.

M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100, Larlee J.A. set out the standard of review to beapplied in family law cases, emphasized the importance of deference to the trial judge, and discussed the appropriate basis for appellateintervention: The appropriate standard of review to be applied in an appeal of this nature is discussed in Van de Perre v. Edwards, [2001] 2 S.C.R.1014, [2001] S.C.J. No. 60 (QL), 2001 SCC 60. The Supreme Court of Canada set out a standard of considerable deference for thedecisions of trial courts in cases of family law.

Intervention on appeal requires that there have been a material error, a seriousmisapprehension of the evidence, or an error of law. A material error is further explained: As indicated in both Gordon and Hickey, (SCC), [1999] 2 S.C.R. 518, the approach to appellate review requires anindication of a material error. If there is an indication that the trial judge did not consider relevant factors or evidence, this might indicatethat he did not properly weigh all of the factors.

In such a case, an appellate court may review the evidence proffered at trial to determineif the trial judge ignored or misdirected himself with respect to relevant evidence. This being said, I repeat that omissions in the reasonswill not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. [para. 15] Speaking for the Court, Bastarache J. further clarified that "an omission is only a material error if it gives rise to the reasoned belief thatthe trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion" (para. 15).

See thisCourt's decisions on the application of the deferential standard: MacLean v. MacLean (2004), 274 N.B.R. (2d) 90, [2004] N.B.J. No. 363(QL), 2004 NBCA 75 at para. 18; J.P. v. R.R. (2004), 278 N.B.R. (2d) 351, [2004] N.B.J. No. 467 (QL), 2004 NBCA 98 at para. 27;Scott v. Scott (2004), 278 N.B.R. (2d) 61, [2004] N.B.J. No. 468 (QL), 2004 NBCA 99 at para. 32 and Boudreau v. Brun (2005), 293N.B.R. (2d) 126, [2005] N.B.J. No. 501 (QL), 2005 NBCA 106 at para. 5. [paras. 8-9] C. The Legislative Framework [19] The relevant provisions of the Divorce Act relied upon at trial and on appeal, are as follows: Divorce 8.

(1) A court of competent jurisdiction may,on application by either or both spouses, granta divorce to the spouse or spouses on theground that there has been a breakdown oftheir marriage. Breakdown of marriage Divorce 8.

(1) Le tribunal compétent peut, surdemande de l’un des époux ou des deux, luiou leur accorder le divorce pour caused’échec du mariage. Échec du mariage

(2) Breakdown of a marriage is established only if (

a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or (

b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage, (

i) committed adultery, or (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. Calculation of period of separation

(3) For the purposes of paragraph (2)( a ), (

a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and (

b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated (

i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or (ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totaling, not more than ninety days with reconciliation as its primary purpose.

(2) L’échec du mariage n’est établi que dans les cas suivants :

a) les époux ont vécu séparément pendant au moins un an avant le prononcé de la décision sur l’action en divorce et vivaient séparément à la date d’introduction de l’instance;

b) depuis la célébration du mariage, l’époux contre qui le divorce est demandé a : (

i) soit commis l’adultère, (ii) soit traité l’autre époux avec une cruauté physique ou mentale qui rend intolérable le maintien de la cohabitation. Calcul de la période de séparation

(3) Pour l’application de l’alinéa (2) a ) :

a) les époux sont réputés avoir vécu séparément pendant toute période de vie séparée au cours de laquelle l’un d’eux avait effectivement l’intention de vivre ainsi;

b) il n’y a pas interruption ni cessation d’une période de vie séparée dans les cas suivants : (

i) du seul fait que l’un des époux est devenu incapable soit d’avoir ou de concevoir l’intention de prolonger la séparation, soit de la prolonger de son plein gré, si le tribunal estime qu’il y aurait eu probablement prolongation sans cette incapacité, (ii) du seul fait qu’il y a eu reprise de la cohabitation par les époux principalement dans un but de réconciliation pendant une ou plusieurs périodes totalisant au plus quatre- vingt-dix jours.

D. Separate and Apart [20] The courts are periodically called upon to determine whether or not spouses are living separate and apart forthe purposes of s. 8(2)(b), even though they both continue to reside in the marital home. The existing case law (see, for example, Teilletv. Teillet, [1997] M.J. No. 135 (Q.B.) (QL); Cooper v. Cooper, (ON SC), [1972] O.J. No. 975 (H.C.J.) (QL) andDupere v. Dupere (1974), (NB KB), 9 N.B.R. (2d) 554, [1974] N.B.J. No. 148 (S.C.Q.B.D.) (QL), aff’d (1974), (NB CA), 10 N.B.R. (2d) 148, [1974] N.B.J.

No. 169 (C.A.) (QL)) discloses a number of factors which are to beconsidered, including: 1. Do the parties occupy separate bedrooms? 2. Do the parties engage in sexual relations? 3. How do the parties communicate with one another? 4. Is there any sharing of domestic responsibilities? 5. Do the parties share meals together? 6. Do the parties engage in social or recreational activities with one another? 7. Do the parties share “facilities”, such as watching television together? 8.

Is there any valid reason for the parties to be living under the same roof? [21] Obviously, the factors enumerated above are not entirely applicable to fact situations such as that found in thecase at bar, but they do offer a useful starting point. When the Court is called upon to determine whether or not spouses who are notcohabitating are living separate and apart for the purposes of the Divorce Act, the following should be considered: 1. Are the parties actually living in separate residences? 2. How do the parties communicate with one another? 3. Do the parties engage in sexual relations? 4.

Do the parties share meals together? 5. Do the parties attend or engage in social or recreational activities together? 6. Do the parties share domestic responsibilities (such as cleaning, maintenance, or renovation work) pertaining to the marital home,

even though they no longer reside together? 7. Do the parties spend time together in private, engaged in the types of routine activities married couples or families often do together,such as watching television? 8. Do the parties travel or vacation together, or spend time together celebrating holidays or special occasions? 9. How do the parties present themselves to family, friends, and the community at large? [22] This list is not intended to be exhaustive.

As part of an analytical framework, these and similar factors shouldbe considered collectively, and the Court should base its finding on whether the parties are at law living separate and apart based on thewhole of the evidentiary record. It is not necessary for each individual factor to point conclusively to legal separation.

As well, no onefactor should be given undue weight, especially to the exclusion of some or all of the others which may point to a contrary result. [23] The courts long ago accepted the possibility that an estranged couple may at law be living separate and apart,even though they continue to reside under the same roof.

That said, surely we must also be open to the possibility that an estrangedcouple who no longer share a residence may at law be living separate and apart even though, for whatever reason, they continue toengage in consensual sexual activity with one another. [24] Had the inquiry at trial looked at all or most of the factors set out above, the following picture would haveemerged: • The respondent maintains a separate residence, which he has arranged in such a way that the parties’ child has a second homethere. • The parties do not communicate well, argue frequently, and what communication does take place is sometimes hostile.

There areallegations of abuse between the parties, and both testified their relationship included name-calling. • As discussed, the parties did engage in sexual relations with one another. • The only meal shared together was on the child’s birthday. • The parties do not attend or engage in social or recreational activities together.

In fact, on those occasions when the parties wouldboth be in attendance at their child’s activities, or happen to see one another in the community, the encounters could be problematic. • The parties do not travel or vacation together, and with the exception of a two-hour period at Easter, do not spend holiday timetogether as a family. • The parties present themselves to others as being separated and not on good terms. [25] Only one of these factors suggests that perhaps the parties were not living separate and apart, that being anongoing sexual relationship.

Although the case law from trial courts across the country is not uniform, this fact alone should not, and inmy opinion does not in this case, constitute an interruption of separation. [26] In Greaves v. Greaves, (ON SC), [2004] O.J. No. 2522 (S.C.J.) (QL), the Court held asfollows:

I accept the evidence of Mr. Greaves witnesses confirming the objective perception that this couple was separated. They did not socialize as a couple. They did not routinely eat together as a family. They did not attend the same church. Although they had a consistent sexual relationship, I cannot find this determinative, any more than the absence of a sexual relationship would be . [Emphasis added.] [para. 37] [ 27 ] Two recent cases out of the British Columbia courts are also helpful. In G.A.W. v. C.M.P. , 2010 BCSC 532 , [2010] B.C.J.

No. 710 (QL) , Savage J. held: The question arises whether there was a reconciliation within the meaning of section 8(3) of the Divorce Act , R.S.C. 1985, c. 3 (2 nd Supp.) or whether the facts support there being a continuation of the marriage. Did the nature and frequency of the parties continuing contact constitute either a continuation of the marriage or cohabitation with reconciliation as its primary purpose over the requisite period? […] The nature of the contact belies the resumption of the married state. There were no joint responsibilities or obligations assumed.

There was no commitment to a married state. The parties never presented themselves to the world as partners, or co-mingled their affairs, in a way which would indicate a joint intention to resume a married state. The parties represented themselves to third parties as single and unmarried. [paras. 29-30] [ 28 ] Fenlon J. in Oliver v. Oliver , 2011 BCSC 1126 , [2010] B.C.J. No. 1581 (QL) , makes the following pertinent observation: In general, when parties choose to live in separate residences (other than temporarily because of work or educational demands), they lack one of the foundational elements of a marriage.

Absent a mutual intention to reconcile, they may continue to have a relationship of sorts, but it will not be a marriage. [para. 98] I would make the same comment about these parties.

Whatever label one may place on their relationship during the period of sexual contact after February 10, 2010, it was not a marriage. [ 29 ] With respect, when the trial judge chose to focus on a single issue in determining whether the parties were living separate and apart for the requisite period, and did not address any factors other than sexual activity in her decision, she fell into error and opened the door for appellate intervention.

In my opinion, it was an error of law to give undue weight to one factor, and no weight whatsoever to the various other factors. [ 30 ] On the issue of reconciliation, I will comment briefly. Both parties testified that reconciliation was not their intention when they met to engage in intimate contact.

It is ironic that had they characterized these sexual encounters as attempts to reconcile (and on the assumption that the 90-day time limitation set out in s. 8(3) ( b )(ii) of the Divorce Act was respected), apparently the question of whether they were living separate and apart would have been answered much more simply. V. Conclusion [ 31 ] On balance, the evidence in this case is strongly weighted in favour of a finding that in fact, and at law, the parties have been living separate and apart since February 10, 2010.

For that reason, the majority of the Court determined that the appeal should be allowed, the Petition for Divorce granted, and the matter remitted to the trial judge, who has already heard a considerable volume of evidence, to deal with the remaining issues between the parties.

[ 32 ] In the unusual circumstances of this case, in which both parties adopted the same position and argument on appeal, I would make no order of costs. _____________________________ BRADLEY V. GREEN, J.A. I CONCUR: ____________________________ B. RICHARD BELL, J.A.