2022 MBKB 216, 2022 MBKB 216

Date: 20221114 Docket: FD 19-01-23494 (Winnipeg Centre) Indexed as: Kubas v. Morrison Cited as: 2022 MBKB 216 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: MELANIE LYNN KUBAS, ) ) Appearances Katherine Misko ) ) Counsel for the petitioner petitioner, ) -and- ) ) ) GORDON DONALD MORRISON, ) ) ) Jessica Schofield and Matthew D.

Geddes Counsel for the respondent ) respondent. ) ) ) REPORT ISSUED: ) November 14, 2022 MASTER GOLDENBERG MASTER’S REPORT ON COHABITATION DATE BACKGROUND [ 1 ] The petitioner filed a petition for divorce on October 29, 2019, seeking a divorce and other relief including an equal division of family property. In it, the petitioner indicated that the date the parties commenced cohabitating was August 7, 2016. The petitioner filed an amended petition for divorce on August 9, 2022, setting out that the parties commenced cohabitating on October 23, 2015. The respondent filed an answer on June 2, 2021.

The respondent contests the date that cohabitation commenced and maintains that it was August 7, 2016. [ 2 ] On June 21, 2022, the respondent filed a notice of motion requesting an order for a reference to the master for a recommendation identifying the date of cohabitation. On July 23, 2022, Everett J. signed an order that stated: 6.1 There shall be a reference to the Master of this Court for a report on the date that MELAINE LYNN KUBAS and GORDON DONALD MORRISON commenced cohabitating with one another. [ 3 ] The first hearing for directions before the master took place on August 23, 2022.

At that point, the formal hearing was scheduled

for October 6 and 7, 2022. It was agreed that the affidavits of the parties as well as the petitioner’s two witnesses would be taken as their direct evidence. Cross-examinations would be conducted in court of both the parties and the petitioner’s two witnesses, Donald Jackson and Michael Kubas. I also granted the petitioner leave to file one further affidavit relating to the allegation that a loan was repaid. That affidavit was to be filed and served no later than September 16, 2022.

I also directed that no documentary evidence could be used at the hearing other than that attached to the parties’ affidavit evidence without further leave of the court. [ 4 ] Accordingly, the following affidavits were relied upon by the parties in support of the reference: 1. Affidavit of Gordon Donald Morrison affirmed June 20, 2022; 2. Affidavit of Melanie Lynn Kubas sworn July 25, 2022; 3. Affidavit of Michael James Kubas sworn April 6, 2021; 4. Affidavit of Donald William Emile Jackson sworn April 7, 2021; 5. Affidavit of Gordon Donald Morrison affirmed August 17, 2022; 6.

Affidavit of Melanie Lynn Kubas sworn September 21, 2022; PRELIMINARY AND PROCEDURAL MATTERS [ 5 ] At the commencement of the hearing, counsel for the respondent expressed concern with the affidavit of Melanie Lynn Kubas sworn September 21, 2022, both with respect to the late filing and on the basis that it contained evidence relating to more than the issue of the loan for which I had granted leave for the further affidavit evidence. [ 6 ] To the extent that the affidavit of the petitioner sworn September 21, 2022, did contain more information than I directed it could contain, I gave the respondent leave to provide further direct evidence at the trial on those issues, prior to being cross-examined. [ 7 ] During the course of the respondent’s cross-examination, petitioner’s counsel sought to put a further document to the respondent that was not attached to any of the parties’ affidavit evidence.

I heard submissions with respect to that document, which was a bank statement of the parties’ joint bank account. I directed that the petitioner was not entitled to rely upon a document that she had not attached to an affidavit, contrary to the direction I gave on August 23, 2022, and for which leave was not sought in advance of the hearing. I found that it would be unfair to the respondent given that he had not been provided with a copy of the document and therefore had not been able to provide direct evidence with respect to the issue.

The respondent had given evidence in his initial affidavit filed June 21, 2022, to the effect that between April and August of 2016, the parties’ joint account was only used to facilitate the purchase of a jointly held home. If the petitioner wished to dispute that, she had an opportunity to do so in her affidavit filed July 27, 2022.

Furthermore, if she wished to rely on additional documentary evidence further to what had already been disclosed at the time of the hearing for directions on August 23, 2022, then she needed leave of the court, and should have sought that prior to the hearing and certainly prior to the commencement of the cross-examination of the respondent. [ 8 ] At the conclusion of the cross-examination of the petitioner, the respondent’s counsel advised that they did not need to cross- examine the petitioner’s two witnesses, namely Michael Kubas and Donald Jackson.

As a result, those witnesses were excused and their affidavit evidence remains as their evidence for the purpose of the reference. RECOMMENDATION [ 9 ] Having considered the affidavit evidence filed and the cross-examinations conducted on October 6, 2022, and counsel’s submissions, it is my recommendation that the date that the parties commenced cohabitating was August 7, 2016. [ 10 ] The parties’ evidence is inconsistent on whether the petitioner moved in with the respondent in his home in Wynward, Saskatchewan on October 25, 2015.

The petitioner says she did, the respondent says they were just dating at that time and got engaged in November 2015, but lived separate and apart until they moved into a jointly owned home in August 2016. He does not dispute that she spent some time with him in Wynward, but denies that she moved in. [ 11 ] The reasons for this recommendation are as follows: 1. The petitioner initially swore in her petition that the date of cohabitation was August 7, 2016.

Under cross-examination she acknowledged that she changed the date because she became aware that she would be entitled to a larger share of the FPA accounting with the earlier date. 2. While the petitioner rented out her Winnipeg property in October 2015 to her father, she maintained her cottage property in The Narrows on Lake Manitoba. 3. While the petitioner spent some time at the respondent’s home in Wynyard, Saskatchewan, she also spent time at her cottage in Manitoba, and kept her address as Manitoba for the purposes of her income tax returns, driver’s license and employment with Census Canada.

While she may have been able to do some work remotely from Saskatchewan when she visited the respondent, I find it significant that she kept Lake Narrows as her residence for all those purposes. Her explanation for why she did not change her address to Saskatchewan, namely because she expected they would soon be moving together to Manitoba, was not persuasive. At law, people must truthfully report their place of residence. This factor is significant in this case where there is otherwise contradictory evidence between the parties about where she resided. 4.

The parties purchased a home together with a possession date of August 7, 2016. 5. The petitioner did lend the respondent money to purchase two vehicles, however, I accept that he paid her back that money. While

the petitioner says she would not have lent him the money if they were not in a committed relationship, I find this was not proof ofcohabitation. 6. I have considered the Molodowich factors (Molodowich v. Penttinen ) and the authorities contained in therespondent’s brief and am persuaded that the application of those cases and the Molodowich factors support the cohabitation date ofAugust 7, 2016. [12] The respondent was the successful party. The date recommended is the same date that the petitioner originally set out in herpetition for divorce.

I am ordering that the petitioner pay costs with respect to the cohabitation reference on a tariff basis. _______________________________ J. L. Goldenberg Master