2023 MBKB 56, 2023 MBKB 56

Date: 20230321 Docket: FD 04-01-75578 (Winnipeg Centre) Indexed as: Kruk v. Kruk Cited as: 2023 MBKB 56 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) MARY NICOLE BRITA KRUK, ) Darrell A. Kreel ) Counsel for the petitioner ) petitioner, ) -and- ) ) ) ) ROBERT DALE KRUK, ) ) Jamie L. Turner Counsel for the respondent ) respondent. ) ) ) ) REPORT DELIVERED: March 21, 2023 SENIOR MASTER CLEARWATER MASTER’S REPORT ON SEPARATION DATE [ 1 ] A reference order was granted on April 14, 2022, referring to the master the issue of the date on which the parties separated and ceased cohabitation.

In this case, there is no contest as to the cohabitation date, which the parties agree was the date of marriage, December 30, 2002. Concerning separation, the respondent says the date was July 28, 2003, while the petitioner says April 1, 2012. [ 2 ] The moving party in this case is the petitioner. She had amended her petition, with consent on or about December 30, 2021, to reflect her proposed date of separation.

This is a transitional file, with a trial date already set for all remaining issues in November of 2023. [ 3 ] At the time of the first appearance, as noted in the hearing for directions memorandum at document 110 on the court file, there was only one affidavit before the court, that being the affidavit of the petitioner in support of her position.

There was an agreement at the first appearance concerning the timing of filing the remaining evidence. [ 4 ] Further, given the looming trial dates, there was a discussion and directions provided to the parties as to how to proceed, which included permitting each party to file a maximum of two supporting affidavits by non-parties if they chose.

It was directed that the evidence of the non-parties would form part of the record, and that the non-parties would be cross-examined outside of court, with transcripts provided for the court’s consideration. [ 5 ] A total of six affidavits were filed in this case, including two non-party affidavits filed by the respondent. The petitioner chose not to file any non-party evidence. [ 6 ] The hearing took place over two days. The directions included that the evidence of the petitioner and respondent, aside from the permitted affidavits, would be provided primarily by way of cross-examination in court.

Given the time constraints, after the hearing closed, arrangements were made for written submissions to be provided to the court. [ 7 ] All of the material is now in and, in consideration of the totality of the evidence and submissions before the court, and for the

reasons provided, I am recommending the date of separation is March 23, 2012. Legal principles [8] It is not disputed that the appropriate test to be applied in this case is an objective one. The court must determine, despite theparties remaining married at law, when these parties separated for the final time without any reasonable prospect or expectation of theresumption of the relationship. There were a number of authorities provided by both parties, but in this case the court is primarily guidedby the factors in Molodowich v. Penttinen, [1980] O. J. No. 1904, (Ont.

S.C.), combined with the test noted in theTorosantucci v. Torosantucci, (ON SC), [1991] O. J. No. 759, 1991 CarswellOnt 262. [9] In this regard, the Molodowich factors have been cited with acceptance on many occasions in our province, and remain theappropriate factors to consider in assessing the nature of the relationship between the parties.

These factors include shelter, sexual andpersonal behaviour, services, social behaviours, societal attitudes, economic and support factors, and children. [10] Further, as cited by the respondent in his written submissions, at paragraph 14 of the Torosantucci case, where there areallegations of separation and periods of reconciliation, as is the case here, the court must also consider the following: A reasonable prospect of reconciliation must be more than wishful thinking on the part of either party. There must be more than residualaffection that may linger by one or both of the parties.

The Act does not speak of a "prospect" of reconciliation but a "reasonableprospect". The Oxford Concise Dictionary 7th Edition, defines prospect as "expectation, what one expects." The question is whether areasonable person, knowing all of the circumstances, would reasonably believe that the parties had a prospect or expectation of resumingcohabitation. I do not doubt that Mr. and Mrs. Torosantucci wished that their marriage would have been otherwise than it was. I accept,on the part of Mr. Torosantucci, that he retained, and continues to retain, some degree of affection for her.

But wishful thinking is not thestuff of reconciliation. There must be some indication or step taken by both of them in that direction. . . . [11] As confirmed by this court in Stone v. Stone, 2021 MBQB 114, the consideration in any given case must be fact specific. Theweight or impact of the various principles in the Molodowich case will turn on those specific facts. In this case, it is clear that there wereseparate residences maintained for all, or most of the duration of the relationship.

As noted in the Stone case, separate residences do notforeclose a finding that the parties cohabited in a conjugal, or common-law relationship. [12] These parties remain married. One party says they separated for good on July 28, 2003, and the other says they separated, butreconciled and ultimately ended the marriage on April 1, 2012.

The question for this court is, based on a review of the evidence and theMolodowich factors, and despite the maintenance of separate residences and occasional periods of separation, whether or notreconciliation between them rose to the level that would give rise to a reasonable expectation the parties had resumed, or maintained themarital relationship. Position of the Parties [13] For his part, the respondent suggests that the parties separated on July 28, 2003, the date upon which they were to takepossession of their jointly owned home in Carmen, Manitoba.

This is approximately six (6) months after the date of the marriage. [14] The respondent says that, at that time of separation he indicated to the petitioner that he did not want her to move into the home,and says he was clear that their relationship was at an end in terms of their marriage. He maintains that he simply could not live with her,and that marked the end from his perspective.

The petitioner acknowledges she did not move into the jointly owned home at that time,and that there was an incident on or about this day that led to some strife between them. [15] However, for her part, the petitioner says, that while there were periods of “gray” in their relationship, which included periods ofactual separation and periods of slow resumption of the marriage, the marriage did not end for good until April 1, 2012.

This time theend was marked, says the petitioner, by her discovery that the respondent was having an affair, or at minimum an inappropriaterelationship with another woman. [16] The respondent acknowledged at the hearing, that there had been an ‘inappropriate’ relationship, but no sexual relationship withthe other woman in question. This final separation, says the petitioner, is clearly set out in the emails she wrote to the respondent on orabout that day (see Exhibit “G” to the petitioner’s affidavit affirmed September 26, 2022).

Facts and Analysis [17] Both couples acknowledge times of challenge between them, and times where they continued to engage in family activities andintimate relations. It is the categorization of this continued relationship that is at issue. [18] In these circumstances, there is an approximate nine-year difference between the proposed dates. There is also a unique set offacts that make the determination of this issue particularly challenging.

These facts include, but are not limited to, the couple havingthree children in the nine years that follow the respondent’s proposed date of separation, and that they continued to live primarily inseparate homes, with financial assistance being provided to the family by the respondent via an interim order of the court that waspronounced in 2005. [19] The respondent describes the continued relationship between the parties not as a marital relationship, but rather an ongoing co-parenting situation, with occasional sexual relations.

The petitioner’s view is that the couple remained operating primarily as a marriedcouple, with regular sexual relations, although maintaining separate households. She refers to the relationship during the relevant time as‘an unconventional marriage’, but one that worked for them. [20] Further, while the petitioner proposes the later date of separation, she acknowledged that there was more than one period of

separation throughout the marriage. In fact, the first period of separation, according to the petitioner, led to the commencement of the within proceedings, and ultimately to the interim support order referred to above.

She says after the Interim Order, signed August 30, 2005, was pronounced, the couple reconciled, and that support order became the vehicle through which the respondent, the bread- winner, supported the separate households. [ 21 ] I do not intend to review all of the evidence before the court, particularly given the need for a proportional approach to this issue, and given the pending trial in November of 2023, but all available evidence and submissions have been considered.

I will generally summarize however, the evidence that I found most impacted my ultimate recommendation that the end of this relationship was March 23, 2012. This is not, I should note, the specific date proposed by the petitioner, as she suggests April 1, 2012, but it is the date on which she writes to the respondent and acknowledges the relationship between them is at an end. [ 22 ] By way of

summary, there was evidence led of the different homes lived in, or owned by the couple over the years, in Winnipeg and Carman, and evidence of other proposed or discussed family property purchases, including discussions concerning the possible purchase of a second family home in Carman in 2009.

There was evidence of family holidays, hotel stays and intimate couple getaways, including trips to Banff for work, and pleasure as late as 2011, and early 2012. [ 23 ] In attached documentation, there is evidence of ongoing communications between the parties, spanning the entire period at issue, concerning the children, family events and holidays, household repairs and chores, travel to and from Carman for family time, and intimate conversations.

There are also communications evidencing the challenges experienced by the couple from time to time, and attempts to discuss and reconcile those issues. [ 24 ] Further, while the within court proceedings were commenced in late 2004, during a period of agreed separation, the court record shows the parties advised their case conference judge of the decision to reconcile in 2008. This is noted in the corresponding case conference memorandum.

Neither party took any formal steps to alter the legal status of the relationship, beyond the first interim contested hearing in 2005, until recently. [ 25 ] As noted at the outset, the parties were entitled to provide up to two additional non-party affidavits in this case. Only the respondent chose to do so. The respondent urged me to draw negative inferences concerning this given, he argues, the petitioner could have brought additional information showing others shared her view of their relationship but chose not to. [ 26 ] I do not dispute that this issue was of some concern to the court.

However, overall, in consideration of all of the Molodowich factors, and in consideration of the objective test that one must apply concerning whether a reasonable person would consider there to have been reconciliation, the facts favor the petitioner despite filing no non-party evidence.

In particular, the considerable amount of attached ongoing family communications between the parties supports her case. [ 27 ] Further, while the non-party evidence that was filed gives some support for the lack of societal attitudes or awareness of the ongoing marriage, it is not, in my view, enough to swing the pendulum so to speak. [ 28 ] Particularly problematic in this regard, is the non-party, Dr. Durland‘s acknowledged lack of involvement in the day to day life of the respondent, and non-party, Dr.

Clayden’s acknowledgement that he was aware of the reconciliation efforts, and even recommended a marital counsellor for the couple sometime in or around 2008.

These issues, combined with the available evidence, including admissions of the respondent surrounding things like the petitioner’s attendance to at least three work holiday parties over the years, which attendance had not been readily acknowledged by other witnesses, lends credibility to the petitioner’s version of the relationship and its unconventional quality. [ 29 ] Concerning the first Molodowich factor, that being shelter, it is clear as noted above that they parties primarily lived under separate roofs.

They kept separate residences at the admission of both parties, but this was in keeping with the unconventional relationship they maintained.

Despite this, the parties remained joint property owners throughout the entire period of time, and actively discussed other property purchases in both Winnipeg and Carman during that time (for examples see Exhibits “C” and “L” to the petitioner’s affidavit affirmed September 26, 2022). [ 30 ] Further, the evidence supports, and for the most part both parties acknowledge that they spent time at both homes, the petitioner spending some time in Carman, often with the children in later years, and the respondent acknowledging that he travelled home to Winnipeg regularly to stay with the petitioner and children.

There is ample evidence available in the attachments to support that these back and forth ‘visits’ included time working on the family home or domestic projects, shopping for groceries, spending family time, celebrating occasions, and engaging in intimate relations. [ 31 ] Concerning sexual and personal behaviour, the parties clearly had ongoing sexual relations.

There was some dispute as to how often the parties had sexual relations, but there is no question that they continued given three children were conceived, and born after July 28, 2003. [ 32 ] The petitioner suggests regular sexual relations occurred between the parties, aside from during periods of separation. She was clear at times, that those liaisons could not continue other than in a married relationship. [ 33 ] For his part, the respondent says they had sex maybe up to 24 times.

However, in cross-examination on this point, the respondent confirmed he was just estimating the number, and felt he had to simply pick one. Other of his evidence, from previous examinations, somewhat contradict that testimony. Overall, I prefer the petitioner’s evidence on this point given it is more consistent with other available and attached communications. [ 34 ] Further, while the parties both acknowledge the somewhat volatile, and definitely unconventional relationship, there is evidence they turned to each other in times of need.

For example, even though the parties had been apart, when the respondent fell ill in or around 2004, he turned to the petitioner for support. [ 35 ] The third Molodowich factor is a consideration of services, that is what the conduct and habits of the parties were in relation to

their day-to-day behavior. As noted, while the parties lived in separate residences, there is evidence in the various email communications that they often shared meals, did shopping together for groceries and children’s supplies, and assisted each other on occasion with household maintenance or domestic services. [ 36 ] There is evidence that the respondent was responsible for certain household repairs over the years, and for managing the finances of the couple.

There is also evidence that the petitioner assisted with laundry at all residences, and other household duties over the years, including being present in Carman in March of 2012, making dinner for the family on the date she learns of the alleged inappropriate relationship she says ended the marriage. [ 37 ] Concerning the next two factors in Molodowich , being social behaviours and societal attitudes, this is where the evidence is less clear. The respondent says, and his reporting witnesses say, that the parties were rarely together or engaging in normal neighbourhood or community activities.

However, the evidence of the petitioner, as conceded by the respondent in his affidavit evidence, supports she attended a number of holiday celebrations held at the respondent’s medical practice, and that she traveled with him on occasion to medical conferences. [ 38 ] Further, the materials include discussions between the parties in which they are planning extended family dinners or events, as well as announcing pregnancies and confirming the status of their relationship with family members (examples include Exhibits “D”, “H” and “X” of the Petitioner’s affidavit affirmed September 26, 2022).

In the court’s view, the evidence on these factors is split. [ 39 ] Concerning the economic and support relationship between the two, it is clear, particularly given the early Interim Order of Justice Clearwater in this matter, signed August 30, 2005, that the respondent was the primary bread earner in the family. The petitioner suggests the respondent desired a ‘traditional’ marriage where she was the primary care giver, and he the money-maker. The respondent did not strongly contest that suggestion.

However, he points to his ongoing compliance with the Interim Order during the relevant time as evidence they were separated by that time, and remained so. [ 40 ] It is troubling in some respects, or at least unusual, that there were ongoing payments of support in accordance with a court order that continued throughout the relationship. There is even evidence that the spousal support tax benefits were being claimed on the respondent’s and petitioner’s taxes throughout.

However, the court record also contains evidence the parties intended to reconcile by 2008, three years after the Interim Order was granted. [ 41 ] The petitioner’s position is that the Interim Order simply became the vehicle through which the respondent controlled, or contributed to the second household expenses.

The evidence also shows that, while the respondent continued to pay monthly under the Interim Order, and even increased the payment without order as other children were born, he often covered additional expenses as they arose, or were required from time to time. [ 42 ] The ‘support’ payments were in fact utilized for the management of the second household, paying for groceries and living expenses throughout the relevant time.

The petitioner did not obtain alternate employment, this was the petitioner’s sole income so to speak. [ 43 ] In the circumstances, while the financial arrangements between the two were originally borne through the Interim Order, in combination with all the other facts, that does not, in the view of the court, necessarily negate the ongoing nature of this relationship.

In fact, it accurately shows the special financial arrangements that continued between the parties as they worked through periods of separation, and enjoyed periods of reconciliation over the many years. [ 44 ] In addition to the Interim Order payments, there is evidence of other financial discussions and plans between the parties. This includes discussions of purchasing other jointly owned properties, and even entering into possible joint business ventures, such as franchising a Tim Horton’s together, all during the relevant time.

The parties also continued to maintain joint ownership of the Carman property throughout. [ 45 ] It is important to note that all of these financial planning discussions occurred after the respondent’s proposed date of separation of July 28, 2003. Even if in the respondent’s mind he did not intend reconciliation, his actions in this regard, are inconsistent with that. Rather, those actions lend themselves to an objective, and reasonable belief that the parties had reconciled and remained in a committed marriage.

In other words, it is evidence, as suggested in Torosantucci , that the parties took actual, tangible steps to reconciliation, all of which are inconsistent with a July 28, 2003 separation date. [ 46 ] Finally, concerning the last Molodowich factor, the children, it is clear the petitioner was primarily responsible for the day-to- day care of the children. However, there is sufficient evidence to show that the respondent was an active participant in birthday parties, albeit often not on the actual birthday, Christmas celebrations, and family holidays.

The couple travelled together, and often took staycations at various hotels in and around Winnipeg, so that they could enjoy special family time with the children. There was also ample evidence that there was significant back and forth travel between the two family residences, including with the children. [ 47 ] Although the respondent was not present for the birth of his first child, both parties acknowledge that was during an actual period of separation early on in the relationship. The petitioner was present for the birth of both other children.

There was also evidence that in late 2011 and early 2012 the parties were discussing adding a further child to their family. [ 48 ] Based on the totality of the evidence, and considering the submissions, I simply do not accept that the respondent considered that the parties had been separated since July 28, 2003. In fact, there is evidence that the respondent, on at least two occasions in the materials before the court, and much past the date he now says the marriage ended for good, sent wishes for a “happy anniversary” to the petitioner on their wedding date.

The last of these anniversary wishes can be found in an email sent from the respondent to the petitioner on December 30, 2011 (see Exhibit “H” of the petitioner’s affidavit affirmed September 26, 2022). [ 49 ] Finally, and even if in the mind of the respondent, his level of commitment towards the petitioner was not as strong as hers, in

considering the test set out in the Torosantucci case noted above, it is objectively reasonable that one would consider this couple remained a married couple on this evidence. In fact, the petitioner did. [ 50 ] While there are other factors present, some of which are noted above, and other periods of separation that could have possibly indicated the end of the relationship, on balance they do not.

The last period of reconciliation, which included, amongst other things, the birth of the third child of the union, evidence of attempts to have a fourth child, happy anniversary wishes, and the parties travelling together for vacations right up until early 2012, says otherwise. [ 51 ] While not perfect, overall I find that the balance of the Molodowich factors favour the position of the petitioner.

The parties, although experiencing various periods of separation throughout, reconciled quite often, and were in fact reconciled, and living as a married couple up until March 23, 2012. [ 52 ] In consideration of all of the above, and all of the evidence adduced at trial, in the cross-examinations, and the exhibits filed in this case, I am satisfied that the more appropriate separation date for these parties is March 23, 2012. I so recommend. [ 53 ] The petitioner is entitled to her costs on a tariff basis for the within proceeding. K. L. Clearwater Senior Master