2023 MBKB 135, 2023 MBKB 135

Date: 20230915 Docket: FD 19-01-21668 (Winnipeg Centre) Indexed as: Rempel v. Rempel Cited as: 2023 MBKB 135 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: SANDRA LYNN REMPEL, ) ) petitioner, ) Mark Mercier ) for the petitioner - and - ) ) DAVID JOHN REMPEL, ) Frank N.

Coniglio respondent. ) for the respondent ) ) Report delivered: ) September 15,2023 master goldenberg MASTER’S REPORT ON COHABITATION AND SEPARATION DATES Reference order, scope of reference, and hearing format [ 1 ] This reference proceeds pursuant to the reference order dated June 14, 2022, which directed a reference to the master for a report on the date that the parties commenced cohabitating with one another and separated and ceased cohabitating with one another. [ 2 ] At the hearing for directions, an issue arose regarding the scope of the reference.

The petitioner takes the position that there were several dates of separation between the parties and that, pursuant to the reference order, I ought to make a recommendation concerning all of those dates. The respondent’s position was that neither the reference order nor the court rules allow the master to provide a recommendation concerning multiple dates. [ 3 ] Mr. Mercier referred to a couple of cases in his submissions, and I also indicated that I was aware of at least one decision which recommended multiple periods of cohabitation, namely, Stone v. Stone , 2021 MBQB 114 .

I indicated that if the question of whether the parties did live separate and apart over the course of their relationship is arguably relevant to their rights under The Family Property Act , C.C.S.M. c. F25 , (the “ FPA ”) that I was of the view that I ought to make recommendations in the course of this reference concerning any such dates.

On the other hand, if there is no arguable relevance to the parties’ property rights, I might decline to make recommendations regarding those dates. [ 4 ] The significance of this issue for the parties is whether a house purchased by the petitioner before cohabitation is to be excluded from the family property accounting other than the asset’s appreciation while the parties were married and cohabiting. The petitioner takes the position that the respondent is not entitled to share in the appreciation during periods when the parties lived separate and apart. The respondent disagrees with the

interpretation and application of the FPA to the family property asset in question. [ 5 ] The parties agreed to proceed with the reference on the basis that I would provide recommendations concerning any periods of cohabitation if I find that the parties lived separate and apart for any periods. In addition, counsel agreed that both parties would still in due course be able to make any submissions that they deem appropriate concerning the

interpretation and application of the FPA to the asset in question. [ 6 ] The parties agree that their final date of separation was June 9, 2016. Therefore, the agreed upon scope of the reference, is for me to make a recommendation regarding the date the parties commenced cohabitating with one another, as well as any periods of

separation between that date and June 9, 2016. [ 7 ] The parties agreed that their direct evidence would go in by way of affidavit evidence. The formal hearing consisted primarily of cross-examinations and oral arguments. I also allowed both parties to provide further direct evidence concerning Exhibit 4, which is, the original copy of a letter to the petitioner from the Canada Revenue Agency (the “CRA”). Recommendation [ 8 ] For the following reasons, I recommend that the parties commenced cohabiting on August 1, 2004, and that their final date of separation was June 9, 2016.

In addition, it is my recommendation that the parties lived separate and apart for the following three periods between August 1, 2004, and June 9, 2016: • March 27, 2007, to April 30, 2009 • July 17, 2009, to November 15, 2009 • July 25, 2010, to May 3, 2011 Evidence and findings Initial date of cohabitation [ 9 ] The parties were married on January 29, 2005, but agree they commenced cohabiting before that date. The petitioner says the parties began cohabiting on August 1, 2004; the respondent says it was August 1, 2003.

Based on the evidence before me, I find that it is more likely that cohabitation commenced on August 1, 2004. [ 10 ] The respondent, originally from the Steinbach area, worked in Alberta and resided in Red Deer, Alberta. In the summer or fall of 2002, he left his job in Alberta for a job as a long haul driver with a cargo transport company.

At that time, the respondent’s employment was based out of the company’s Edmonton office and he maintained a residence in Red Deer, Alberta. [ 11 ] In 2002, the petitioner was also employed by the same transport company, working in its licensing department in their Steinbach office. At that time, she was separated but not yet divorced from her now former husband with whom she had a son in 1997. The parties met in the course of working for the same company. The respondent says they quickly became close and started dating in the summer or fall of 2002.

The petitioner denies that they started a relationship in the summer or fall of 2002. While they may have met around that time, she says they were just friends who spoke occasionally on the phone and saw each other occasionally at work. [ 12 ] The petitioner testified that the first time she recalls the parties going out for dinner together was in June of 2003. She said the respondent met her son in August of 2003, and while they were seeing each other then, her family did not know about the relationship. She considers that they became a couple in the fall of 2003.

By that, she means they were dating but not living together. Around that time, the respondent would occasionally stay over at her place when he was in town. She said he also had a room at a friend’s place in Steinbach, where he often stayed when in town, and at that time he also still had a place in Red Deer. [ 13 ] Based on the evidence, I find that it is more likely that the parties commenced cohabitation in August of 2004 rather than in 2003. The petitioner’s recollection was more specific than the respondent’s recollection.

She recalled the time they began cohabiting in relation to other things going on in her life such as the age of her son, when the respondent met her son, when she got divorced, when the parties got married and when he adopted her son. While the respondent was often out of town for work both before and after their cohabitation commenced, the petitioner could point to other things about their relationship that were different after August 1, 2004. She said the respondent was more involved with her son, including providing financial support for soccer and piano lessons.

She said they also became more involved with each other’s families around that time. [ 14 ] The respondent acknowledged on cross-examination that he was not certain about all of the dates. He said he has a letter attesting that he did not live with the friend the petitioner says he lived with for a time in Steinbach in 2003. He did not however produce this letter or obtain an affidavit from that person in support of his position on when cohabitation commenced.

The respondent has provided no documentation or other corroborating evidence to support his assertion that he resided with the petitioner in her home starting in 2003. I find that he is mistaken in that recollection. Periods of separation [ 15 ] Both parties agree that there were some periods of separation. The petitioner says the periods of separation were more frequent and more prolonged than the respondent acknowledges. [ 16 ] In both her petition and affidavit filed in support of the reference, the petitioner indicated that there were five periods of separation as follows: 1.

March 27, 2007 to April 30, 2009 – 765 days 2. July 17, 2009 to January 15, 2010 – 182 days 3. July 25, 2010 to August 1, 2011 – 372 days 4. September 7, 2011 to January 17, 2012 – 132 days

5. June 15, 2012 to November 10, 2012 – 148 days [ 17 ] The respondent says that while he was away from Manitoba for extended periods due to the nature of his employment, he does not consider those to be periods of separation. The respondent acknowledges the parties had one significant period of separation from 2010 to 2011 when he moved out of the marital home for nine months. The only other period of separation he recalled was for a few weeks in the summer of 2009 when he says the petitioner kicked him out of the house for a few weeks.

He says that, at most, they were separated for about two months in July and August 2009, during which he lived at a friend’s residence in Winnipeg. [ 18 ] The petitioner says her separation dates do not include any periods when the respondent was working out of town; instead, they only include those times when either he broke up with her and left or she broke up with him and told him to leave. [ 19 ] Much time was spent on cross-examinations relating to Exhibit 4, a letter from the CRA to the petitioner dated March 13, 2013, signed on the front page by both parties, with various handwritten periods of separation listed by the petitioner on the reverse and purportedly signed by both parties on the reverse. [ 20 ] The letter from the CRA to the petitioner relates to their calculations of child and family benefits and credits.

It indicates that the petitioner’s marital status changed to married on her 2011 income tax return and that the exact date of that marital status change was required for the CRA to calculate the petitioner’s benefits and credits correctly. The form has a space for the petitioner to indicate the date her marital status changed to married in 2011, and indicates both spouses or common-law partners must sign the form to update their files.

Both parties agree they signed the front page which includes the notation that the date the marital status changed to married in 2011 was May 3, 2011. [ 21 ] On the reverse side of the page, there are handwritten notes including a handwritten list of dates as follows: May 13, 2013 Married – Jan 29, 2005 – March 27, 2007 #1 Separated – March 27, 2007 – April 30, 2009 – 765 days Married – April 30, 2009 – July 17, 2009 #2 Separated – July 17, 2009 – November 15, 2009 – 122 days Married – November 15, 2009 – July 25, 2010 #3 Separated – July 25, 2010 – May 3, 2011 – 283 days Married – May 3, 2011 TO PRESENT Aug 1, 2011 #4 Separated – Aug 1, 2011 – Jan 2012 Married – Jan, 2012 – June 2012 #5 Separated – June, 2012 – November, 2012 Married – Nov, 2012 – June 9, 2016 #6 Separated June 9, 2016 [ 22 ] Some of the notes are in blue ink, and some are in black.

There are two signatures near the notes, one by the petitioner and one purportedly by the respondent. [ 23 ] A copy of the March 13, 2013, letter was included as Exhibit D to the petitioner’s affidavit sworn May 5, 2022. The petitioner’s initial evidence regarding that letter, as set out in paragraph 13 of her affidavit affirmed May 5, 2022 (marked as Exhibit 1), was as follows: 13. In 2013, I received a letter from Canada Revenue Agency conducting a review for GST and Child Tax Credit as a result of a change that I claimed in my marital status in 2011.

They were requesting further information at that time due to our frequent separations. As a result of our separations, my GST and child tax credits were confusing. When I spoke to them on the phone, I was advised that I needed confirmation of the separation dates up until that time. As a result, I wrote out all of the dates, and the Respondent signed both the front and the back of the forms, confirming the separation dates were accurate. Attached hereto and marked as Exhibit “D” to this my Affidavit is a copy of the Revenue Canada letter that was submitted and signed by the Respondent in 2013.

I had previously maintained a list of the times we separated for my own sake. [ 24 ] In addition, the petitioner affirmed as follows in paragraphs 10 to 13 of her reply affidavit (Exhibit 3):

10. In response to paragraph 10, and the allegation I, or someone else, forged his signature, this is not accurate. The Respondent and I sat down at the kitchen table together and discussed the dates. He agreed and then signed the front and back himself. This form was filled out as I was advised by Revenue Canada, over the phone, as to how to detail the different times that we separated. 11. The Respondent sat with me and reviewed the dates and signed both pages. He had asked on other occasions that I simply sign documents for him when he was not in town, which is something that I consistently refused. 12.

As it related to the dates, these were written when the Respondent and I sat together. I subsequently kept the original of this document and have added the additional separation dates in black ink and have written the numbers in terms of the number of dates of separation. 13. This document however was signed by the Respondent and then sent to Revenue Canada in order to clarify the Child Tax Credit issue. [ 25 ] At the hearing, the petitioner explained that when both of them signed the back of the letter, the dates listed were up to and including “MARRIED MAY 3, 2011 TO PRESENT”.

The petitioner denied that she forged the respondent’s signature on the back of the page. She was asked questions about certain charges and allegations that she had previously forged her husband and boss’s signature. She denied having forged either of their signatures and said the charges were dropped. [ 26 ] In addition to Exhibit 4, the petitioner relies on other documentary evidence to support these various periods of separation.

She also described a relationship with the respondent that was fraught with significant problems, including, the respondent having girlfriends at various times and problems with his financial spending habits. She said that the respondent having girlfriends was the main reason for many of their separations. [ 27 ] The respondent denies some of the significant problems alleged but agrees he did have girlfriends during his cohabitation with the petitioner. I find that documentation submitted by the petitioner corroborates the petitioner’s position that there were several lengthy periods of separation.

While the documents do not prove all of the exact dates of separation, they support and give credibility to the petitioner’s evidence. The agreed-upon evidence relating to the respondent having relationships with other women also lends credibility to the petitioner’s assertions that the parties separated several times.

On the other hand, the respondent submitted no documentation supporting his assertion that the parties were cohabiting from August 1, 2003, until June 9, 2016. [ 28 ] Based on the petitioner’s evidence, it makes sense that when she received this letter, she called the CRA to ask what she should put on the form due to their frequent separations. It also makes sense that the respondent needed to sign both pages of the form because it would also have a legal impact on him. The front of the page clearly states that it must be signed by both parties in order to update both of their files.

It is logical that the petitioner was told to have the respondent sign the back if she was adding further dates. [ 29 ] Another CRA document submitted by the petitioner shows that they did receive information from her shortly after May 13, 2013, and that the information she provided to them at that time was used to recalculate various benefits. For example, the tax benefit notice at Exhibit 1, Tab F, indicates that the notice represents the information processed as of May 23, 2013, including that the petitioner’s marital status for 2007 was single.

That is consistent with information provided on the back of Exhibit 4. I find that document supports that the petitioner set out various dates of separation on this letter and sent it to the CRA. [ 30 ] I believe it is more likely that the respondent signed the back of the form than it is that the petitioner forged the respondent’s signature. While the respondent affirmed in his affidavit that his signature was forged, he did move away from that position somewhat at the hearing.

He used phrases such as not remembering or seeing the back of the page when he signed the front and not “believing” that the signature on the back was his. There is another document submitted by the petitioner that the respondent testified that he does not remember signing, that is an application by the petitioner for a firearms licence dated November 15, 2010 (Exhibit 1, Tab Q). Based on the evidence before me, I was satisfied that despite the respondent not remembering that he signed that document, that in fact he did sign it on November 15, 2010.

It was also a document that needed to be signed by a former spouse. Therefore, I think it is more likely that the respondent also signed the back of the CRA letter even if he does not remember doing so. [ 31 ] Accordingly, I find that the parties did sit down together on May 13, 2013, did discuss the dates, and that both parties signed the front and back of the paper on that date.

I accept the evidence of the petitioner that the respondent agreed to the periods of separation that she had noted as of that time, that is, up to and including the period noted as separated from May 3, 2011, to present. [ 32 ] I also accept the petitioner’s evidence that during periods the parties were not cohabiting, that the respondent did not make any financial contributions to assist her in paying expenses. In contrast, when they did cohabit, he did make some financial contributions.

Based on the evidence including the respondent’s acknowledgment that he had girlfriends, that the parties fought a lot, and that they went through a number of stressful situations, and my finding that he did sign the back of Exhibit 4, I do not accept the respondent’s evidence that there were only two periods of separation or that one of them was as short as alleged by the respondent. [ 33 ] I find that the parties were not cohabiting during the following three periods of separation.

For each of those periods, I have set out the documentary evidence and my evidentiary findings that support the period of separation. I am, however, not satisfied that the parties had a fourth or fifth period of separation. My conclusions regarding those further alleged periods are also set out below.

Separation Number 1: March 27, 2007, to April 30, 2009 [ 34 ] This period of separation was recorded by the petitioner on Exhibit 4 and was agreed to by the respondent by his signature on May 13, 2013. [ 35 ] The respondent was in a relationship with a woman in Alberta whom he considered to be his girlfriend, for all or most of this time. [ 36 ] The CRA notice relating to 2007 calculates the petitioner’s benefits based on information including that her marital status was single (Exhibit 1, Tab F). [ 37 ] The CRA notice for the year 2008 indicates that it used the petitioner’s marital status of single to calculate benefits (Exhibit 1, Tab J). [ 38 ] The respondent’s income tax return for the year 2007 lists his marital status on December 31, 2007, as separated (Exhibit 1, Tab E).

While this tax return was prepared by the respondent’s trustee in bankruptcy, after he declared bankruptcy in 2011, I find that the information was likely based on information provided to the trustee by the respondent.

And, in any event, the respondent acknowledged that he has done nothing to date to correct that information if it was wrong. [ 39 ] Likewise, the respondent’s income tax return for the year 2008, also prepared by his trustee in bankruptcy, lists his marital status on December 31, 2008, as separated (Exhibit 1, Tab I). [ 40 ] While the respondent denies that there was any period of separation in this time period, I do not find that plausible. His income tax returns for 2007 to 2008 list him as separated. This is consistent with his acknowledgment on Exhibit 4 and is legally significant.

He had a girlfriend in Alberta during much of this time. The respondent has no documentary evidence to support his position that he was living with or otherwise in a conjugal relationship with the petitioner during this time. I find that the parties separated at this time because the respondent had a girlfriend in Alberta.

Separation Number 2: July 17, 2009, to November 15, 2009 [ 41 ] This period of separation was recorded by the petitioner on Exhibit 4 and was agreed to by the respondent by his signature on May 13, 2013. [ 42 ] The respondent’s bank statement for August 31 to September 16, 2009, was addressed to his parents’ address. [ 43 ] On November 6, 2009, the respondent purchased a prepaid cell phone and the invoice lists his parents’ address (Exhibit 1, Tab M). [ 44 ] The respondent acknowledges a period of separation of a few weeks or, at most, a period of approximately two months in or around July and August 2009 when the petitioner kicked him out of the house and during which he resided at a friend’s house in Winnipeg (Exhibit 2, para. 7).

The respondent agreed on cross-examination that the petitioner kicked him out of the house on July 17, 2009, because they fought about his girlfriend. [ 45 ] On cross-examination, the respondent says he remembers that the petitioner was laid off from her job in October 2009, and that the parties were not together at that time. [ 46 ] The petition and the petitioner’s affidavit list this period of separation as lasting until January 15, 2010. There is one CRA document that shows the petitioner’s marital status as separated for the year 2009 (Exhibit 1, Tab N).

However, that form was based on information received from the petitioner on May 5, 2011. The information provided by both parties on the 2013 letter would have replaced this information. Given that both parties agreed to the earlier end date of November 15, 2009, by way of Exhibit 4, and given that there is no other documentary evidence supporting that the parties were separated until January 15, 2010, I find that this period did end on November 15, 2009.

Separation Number 3: July 25, 2010, to May 3, 2011 [ 47 ] This period of separation was recorded by the petitioner on Exhibit 4 and was agreed to by the respondent by his signature on May 13, 2013. [ 48 ] The respondent acknowledges a significant period of separation from 2010 to 2011, when he left the marital home for approximately nine months (Exhibit 2, para 7). He recalls that he rented an apartment for those nine months. [ 49 ] The respondent signed the petitioner’s firearms licence application on November 15, 2010, as the former conjugal partner of the petitioner (Exhibit 1, Tab Q).

That document indicates that the parties were separated on July 25, 2010. On cross-examination, the respondent initially agreed that he signed this document but then resiled from that position and said he only remembers signing a licence application for the petitioner in 2016 after they split up for the final time. As noted above, I find that he did sign this document on November 15, 2010, and the parties were still separated at that time. [ 50 ] When the respondent declared bankruptcy on January 18, 2011, he listed his marital status as separated (Exhibit 1, Tab G).

August/September 2011 to January 2012 [ 51 ] The petitioner added a period of separation of August 1, 2011, to January 2012, on Exhibit 4 after the respondent signed it. In her affidavit (Exhibit 1), she affirmed that the parties did not reside together as a couple from September 7, 2011, to January 17, 2012. She was not able to explain why she used the September date in her affidavit.

[52] The petitioner relies on her 2011 Tax

Summary (Exhibit 1, Tab

U) to support her position. In her affidavit, she indicates that itshows she was single. The tax

summary does not include marital status. The petitioner nevertheless said that it establishes that shedeclared herself single because she claims for credits she would only be entitled to if single.

While I accept her premise that she mayonly have been entitled to certain credits such as for a child if she was single, I am not satisfied that this document is proof of her maritalstatus in this period. [53] Contrary to her assertion, Exhibit 4 indicates that the petitioner changed her marital status to married on her 2011 income taxreturn. [54] On September 7, 2011, the respondent certified a bankruptcy income and expense form for August 2011 (Exhibit 1, Tab T).

Itindicates (by handwritten changes to the form) that the respondent’s address was the petitioner’s house and that his marital status wasmarried. [55] As a result of that form, I find that the parties were cohabiting during the month of August 2011. Furthermore, based on theevidence before me, I am not satisfied that the parties were separated for any other time in this period, that is, up to January 17, 2012. June 2012 to November 2012 [56] The petitioner noted the dates of separation in Exhibit 4 as June 2012 to November 2012.

In her affidavit, she affirmed that theparties were separated from June 15, 2012, to November 10, 2012. She has no other documents to support her position, nor did sheprovide any further evidence about this separation. It was put to the respondent on cross-examination that the parties had a fight on June15, 2012, and that he stormed out and lived with a friend during this time period. The respondent denied this.

He said it was possible thathe was kicked out of the house for about a week around this time, but said he did not live elsewhere other than with the petitioner duringthis period. [57] Given the petitioner has no documentation to support her position other than her note on Exhibit 4, given that she provided noevidence herself explaining the circumstances of this alleged period of separation, and given the respondent’s denial, I am not satisfiedon a balance of probabilities that this further period of separation took place.

Conclusion [58] I find that the parties’ commenced cohabitation on August 1, 2003, lived separate and apart from: • March 27, 2007 to April 30, 2009 • July 17, 2009 to November 19, 2009 • July 29, 2010, to May 3, 2011 and separated for a final time on June 16, 2016. [59] The respondent provided no evidence whatsoever to corroborate his recollection that the parties cohabitated throughout theperiod August 1, 2003, to June 9, 2016, with the exception of the periods he acknowledged. [60] The case of Molodowich v. Penttinen, (MB KB), [1980] O.J.

No. 1904, 17 R.F.L. (2d) 36, contains a list offactors and questions often considered by the courts in determining whether parties have cohabited in a conjugal relationship, or whenthat relationship ceased. [61] For the periods of separation that I have found occurred during the course of the parties’ relationship I find that the respondenthas not established that he was residing with the petitioner, that they had a sexual relationship, or that they went out socially or heldthemselves out as cohabitating.

There was some evidence that the petitioner continued to assist the respondent from time to time such aswith completing his bankruptcy papers and some evidence that the respondent may have assisted with some labour relating to a repair atthe petitioner’s house during one of the periods of separation.

However, there was no evidence to suggest any financial arrangements remained in place between the parties such as the respondentcontributing to household expenses or financial support for their son. [62] The petitioner does have some documentary evidence to support her assertion that there were periods of time that the parties livedseparate and apart, including that the respondent resided elsewhere, and that he indicated he was separated to significant entities such asthe CRA for his income tax returns, a licenced insolvency trustee for his bankruptcy, and the RCMP relating to a firearms licence.

I alsoaccept that he signed Exhibit 4. The respondent also acknowledged that he was in a relationship with another woman during most of thefirst period of separation and agrees the parties were separated for nine months coinciding with the third period of separation. On theother hand, there was evidence that did not support the fourth period of separation alleged by the petitioner, and no evidence to supportthe fifth period of separation. Costs [63] Success on the reference was mixed.

While I preferred the initial date of cohabitation put forward by the petitioner, and foundthree further periods of separation, I did not accept all of the dates of separation argued by her. I also note that the respondent causedsome delay in the hearing for directions and that a second date for hearing for directions was therefore necessary.

[ 64 ] Given that the petitioner was more successful than the respondent and that there was some delay caused by the respondent who did not initially respond to the reference motion, or to the requirements set out in the order, I am awarding the petitioner costs of $3,000, all-inclusive, for the conduct of the reference, in any event of the cause. _________________________ J. L. Goldenberg Master