2023 MBKB 152, 2023 MBKB 152

Date: 20231012 Docket: FD 22-01-29360 (Winnipeg Centre) Indexed as: J.M.P. v. J.F.P.B. Cited as: 2023 MBKB 152 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: J.M.P, ) ) ) Louis J. Godry and Sebastian Burachynsky Counsel for the petitioner ) ) petitioner, ) -and- ) ) ) J.F.P.B., ) ) ) ) Harvey J.

Slobodzian and Adam Kaplan (articling student) Counsel for the respondent ) ) respondent. ) ) ) REPORT ISSUED: ) October 12, 2023 ) ASSOCIATE JUDGE LEE ASSOCIATE JUDGE’S REPORT ON COHABITATION DATE [ 1 ] The petitioner filed a petition on April 7, 2022, seeking parenting arrangements, child support and protective relief as well as exclusive occupancy of the family home. The petition does not seek a division of family property. In the petition, the petitioner states that cohabitation commenced on July 1, 2020 and ceased on March 28, 2022. [ 2 ] The respondent filed an answer on April 29, 2022.

The respondent contests some of the relief sought by the petitioner and claims child support, joint custody, a declaration of the parties’ cohabitation in a conjugal relationship from May 15, 2016 until March 28, 2022, and an equal division of family property. [ 3 ] On June 23, 2022, the respondent filed a motion seeking a reference to the Master to obtain a recommendation identifying the date of the commencement of cohabitation. The respondent’s affidavit sworn June 22, 2022, was filed in support.

Subsequent to filing the motion and the moving party’s affidavit, the petitioner filed a responding affidavit affirmed September 12, 2022, and the respondent filed a reply affidavit sworn March 8, 2023. The respondent filed a motion brief in connection with the motion and on March 29, 2023, Everett J. signed an order directing a reference to the Master for a report on the date that the parties commenced cohabitation. The petitioner filed a motion brief on April 19, 2023, subsequent to the date that the order was pronounced.

The petitioner also filed a notice of motion to expunge portions of the respondent’s reply affidavit on the ground it violated the evidentiary intent of a reply affidavit.

However, that motion was returnable at the first hearing with respect to the reference. Given that the evidence had been part of the record before Everett J. when she pronounced the cohabitation reference order and there is no indication whether she considered the inappropriate reply evidence or not, I had no jurisdiction to deal with the expunge motion. I did allow the petitioner to file a sur-reply affidavit under the circumstances. I also indicated that each party could file up to four third party affidavits. A second hearing for directions took place on June 7, 2023.

Prior to that hearing the petitioner had filed a sur-reply affidavit as well as four third party affidavits. The respondent filed three third party affidavits. At the June 7, 2023, hearing, directions were given for cross-examination on the parties’ affidavits. The parties were advised that up to two of each party’s third party affiants could be cross-examined.

I also directed each party to file copies of their complete 2017-2020 income tax returns. [ 4 ] The hearing proceeded on September 29-30, 2023. [ 5 ] The respondent maintains that the parties commenced cohabitation on May 15, 2016 and cohabited continuously until March 28, 2022.

The petitioner maintains that although the parties did commence dating on May 15, 2016, and commenced cohabiting very soon thereafter (the petitioner maintaining the date of commencement of cohabitation was June 15, 2016), this first period of cohabitation terminated on or about April 24, 2017, when she relocated to Kenora, Ontario, for her employment. The petitioner maintains that after on or about April 24, 2017, the parties did maintain an ongoing “friendship” but that it was only on or about mid-July, 2020, that the parties commenced their second period of cohabitation.

Both parties acknowledge that the date cohabitation ceased was March 28, 2022. The respondent’s evidence [ 6 ] The respondent’s initial affidavit sworn June 22, 2022, is a short affidavit with nine substantive paragraphs. In paragraph six of the affidavit the respondent swears that “the Petitioner and I decided that we would rent an apartment . . . in Winnipeg and purchase a home . . . in Kenora, Ontario. Commencing June 7, 2017, I would routinely travel between Winnipeg and Kenora on weekends and virtually all vacation days.

Attached hereto as “Exhibit B” are a series of Google Timeline printouts evidencing the many trips I have made to Kenora while the petitioner was deployed through (her employer). The petitioner would stay at the apartment with me when she attended Winnipeg for work functions or to share the travel time between both locations.” In paragraph seven the respondent swears that “Our relationship continued on much the same basis as before the relocation to Kenora . . .

We had agreed that I would handle all expenses in regard to the apartment . . . in Winnipeg . . . while she would handle expenses at our home located . . . in Kenora which was under her sole name. We would attend to family gatherings such as birthdays, holidays and various social activities together.

The petitioner and I also took a vacation to Veradero, Cuba.” Other than these two paragraphs, the affidavit addresses very briefly the period prior to April, 2017 and the period subsequent to the summer of 2020 when the petitioner maintains the parties reconciled and recommenced cohabitation. [ 7 ] The petitioner filed an affidavit in response affirmed September 12, 2022, which provides a very detailed response and a very different picture of the relationship of the parties during the time in question from April, 2017 to July, 2020 (the “period in question”).

In reply to the petitioner’s affidavit, the respondent filed a much more detailed reply affidavit sworn March 8, 2023. Much of the affidavit does not contain proper reply but is designed to bolster the evidence contained in the respondent’s first affidavit. However, what the affidavit mainly does is provide back up pictures supporting the Google Timeline which had been attached as “Exhibit B” to the affidavit of June 22, 2022.

The pictures show that the respondent was in the Kenora area on various dates during the period in question. [ 8 ] The collateral affidavits filed on behalf of the respondent include the affidavit of the respondent’s mother, who resides just outside the City of Winnipeg. She presented very little firsthand knowledge with respect to the relationship between the parties although she did state in paragraph 15 of her affidavit “In or around the summer of 2018, the petitioner and JF (the respondent) attended our home to camp with the family on a few long weekends.

JF and the petitioner presented themselves as a couple and slept in the same tent.” She also deposed that in or about December, 2017, she was invited by the petitioner to join the petitioner and the respondent on New Year’s Eve in Kenora. However, she was unable to attend, and in fact, never once attended the petitioner’s residence in Kenora. [ 9 ] The mother’s common-law spouse also swore an affidavit containing essentially the same evidence that was provided by her, particularly during the period in question. The third collateral affidavit is the affidavit of the respondent’s sister-in-law.

In paragraph eight of her affidavit, she swears that “In or around the month of April, 2017, J. advised me that although she had accepted the new position with . . . in Kenora, Ontario, she wanted to continue seeing JF, even though it would be a long distance relationship. I know from being in regular communication with both parties during this time that JF would drive out most weekends to stay at the house . . . in Kenora to visit J. and helped do renovations on the house as needed.

JF continued to make the drive from Winnipeg to Kenora for the duration of J.’s stay in Kenora.” She also says she visited Kenora on or about December 31, 2017, with her partner and their nieces to celebrate New Year’s Eve. [ 10 ] As directed by the court, the respondent filed his income tax returns for the years, 2017, 2018, 2019 and 2020. In each of those years, he declared his marital status as single. [ 11 ] On cross-examination, the respondent continued to insist that he travelled to Kenora with his son every second weekend and that his son and daughter each had their own bedrooms at the Kenora residence.

When asked whether he had pictures of the children’s bedrooms in Kenora or pictures of the children doing activities in Kenora he answered that he had only presented a selection of pictures and did not think he needed to provide any additional pictures. The respondent confirmed in cross-examination that the Kenora property was fully owned and maintained by the petitioner and that the respondent made absolutely no contributions to that property.

He also confirmed that the parties had no joint credit cards or investments or bank accounts as well as no joint loans. [ 12 ] In the cross-examination of the respondent’s mother, she maintained that she had a very close relationship with her children, including the respondent. She confirmed that she never attended the Kenora residence but that the petitioner had attended with the respondent at her property for a “few long weekends” in 2018 for camping trips on her property.

She said that she had very little time to see her grandson because the respondent would pick him up and take him to Kenora on most weekends that he was in the respondent’s care. Evidence of the petitioner

[13] The petitioner maintains the parties’ initial conjugal relationship ceased in mid-April, 2017 when she took the job in Kenora. Thepetitioner confirms that she purchased the Kenora property in her name alone and made all mortgage payments, property tax payments,insurance payments, utility payments and repairs. The petitioner did acknowledge that the respondent assisted in building the fence at theproperty as well as installing the backsplash and assisting with painting at the residence.

However, the petitioner maintains that thesecontributions by the respondent were either made as part of an ongoing friendship, or in the case of certain work done by the respondentto the Winnipeg property previously owned by the petitioner and sold in 2017, in lieu of rent for May and June which he had previouslypaid in the amount of $600.00 per month.

The petitioner does acknowledge that during the period in question, she continued a friendshipwith the respondent which consisted mainly of him visiting Kenora from time to time, on a few occasions with his son, as well as the oneoccasion at the end of 2017 when the respondent attended with other family members. She acknowledges having sexual relations withthe respondent from time to time. However, she also sought other relationships during the period in question.

Her explanation for notpursuing other relationships aggressively and for continuing to have sexual relations with the respondent during the period in questionwas that she had contracted herpes from the respondent and this had a very serious impact on her ability to have a sexual relationshipwith other partners.

She also maintains the respondent had other relationships during the period in question. [14] The petitioner’s evidence is that she only stayed at the respondent’s apartment in Winnipeg on a couple of occasions and if shewas required to attend Winnipeg for work, she would generally stay in a hotel paid for by her employer. [15] According to the petitioner, the respondent had no personal effects at the Kenora residence.

All of the third parties who providedevidence in support of the petitioner denied observing any of the respondent’s personal items at the Kenora residence although most ofthem had attended the residence on numerous occasions during the period in question.

The respondent was observed in Kenora by thesewitnesses at most on one or two occasions. [16] The petitioner confirms that she filed her income tax returns during the period in question as a single person and that herFacebook profile identified her as single. [17] During the period in question, the petitioner went on a number of vacations with girlfriends and, on one occasion took her motherto Cuba. Only once did the petitioner and respondent take a vacation together. This was the trip to Cuba in March, 2018.

The petitionerexplained that she arranged for the respondent to go on the trip with her but that he did not have the money to pay for the trip. She paidfor the trip but maintains that in repayment he installed the backsplash at the Kenora residence. That backsplash was installed in April,2018.

One of the petitioner’s friends who was also on the Cuba trip, K.T., affirmed an affidavit in these proceedings on October 6, 2022.In her affidavit, she stated that there was considerable tension between the respondent and the petitioner during this trip and that on atleast two occasions during the trip the petitioner spent the night on the couch in K.T.’s room.

She also gave evidence confirming that thepetitioner identified herself on her Facebook page as single during the period in question. [18] The petitioner denies she held herself out in a continuous conjugal relationship with the respondent during the period in questionand does not acknowledge celebrating various significant occasions as a family during the period in question other than one birthday ofthe respondent’s son, the one occasion when the respondent and members of his family attended for New Years’ Eve at the end of 2017and a few camping trips at the home of the respondent’s mother. [19] The petitioner acknowledges co-signing the respondent’s lease for the apartment that he secured after the petitioner moved toKenora.

According to the petitioner, the respondent could not get anyone else to co-sign the lease and the respondent could not obtain alease without a co-signer. The petitioner testified that after one year she contacted the leasing agent and had her name removed from thelease.

In any event, she made no financial contribution to the respondent during the period in question. [20] The petitioner says that in or about June, 2020, she was advised by her employer that she was to be relocated back to Winnipegand that she started having more regular communication with the respondent who continued to try and convince the petitioner toreconcile.

She says that towards the end of July, 2020, the respondent convinced her to allow him to move in temporarily to thecondominium she was residing at in Winnipeg although she says that the understanding was that he would live there only until he couldfind a job and support himself. She denies contemplating a long term relationship with the respondent at that point. However, the partieswere having sexual relations during this time and around the end of August, 2020, the petitioner discovered she was pregnant. Sheacknowledges that the parties resumed their conjugal relationship after learning of the pregnancy.

The Law [21] Both parties agree that the factors set out in Molodowich v. Penttinen, [1980] O.J. No. 1904 (QL), (ONSC),apply. The factors themselves include a consideration of shelter, sexual and personal behaviour, services, social, societal, support(economic) and children. The Manitoba Court of Appeal cited with approval the Molodowich factors in Steffen v. Brier et al, 2004MBCA 83 (QL). In that decision the court stated as follows: Meaning of Cohabitation 17 As stated earlier, the term "cohabit" does not have a precise meaning, but it has received considerable judicial

interpretation to assistcourts in determining, on the facts, whether two people cohabited. In the case of Tanouye v. Tanouye, (SK KB),[1994] 2 W.W.R. 735 (Sask.

Q.B.), the court considered many of the authorities and concluded (at para. 36): The authorities seem to indicate that a common-law relationship or marriage requires perhaps not all but at least a majority of thefollowing characteristics: economic interdependence including an intention to support; a commitment to the relationship, express orimplied, for at least an extended period of time; sharing of a common principal residence; a common desire to make a home together andto share responsibilities in and towards that home; where applicable, shared responsibilities of child rearing; and a sexual relationship.

Aswell, it appears that, superimposed on the relationship, there should be the general recognition of family, friends, and perhaps to someextent the larger community, that the particular man and woman appear as a "couple", i.e., a family unit.

[ 22 ] As stated by Senior Master Clearwater (as she then was) in Reimer v. McWhirter , 2022 MBQB 147 , it is for the moving party to prove cohabitation in a common-law capacity. Application of the evidence to the relevant factors [ 23 ] I will consider the factors set out in Molodowich , in turn. Shelter [ 24 ] There is no question that the parties resided together from early to mid-June, 2016, through late April, 2017. However, in late April, 2017, the petitioner moved to Kenora for her employment. She initially stayed at a resort and subsequently bought her house in June, 2017.

The petitioner allowed the respondent to remain in her former residence in Winnipeg until the end of June rent free in return for his doing some work to ready the house for sale. He then moved into an apartment in Winnipeg. During the period in question, the parties did not live under the same roof. Both parties lack credibility with respect to the frequency that they spent together during the period in question. On one hand, the respondent maintains that he routinely travelled between Winnipeg and Kenora on weekends and on virtually all his vacation days.

On his cross-examination he maintained that he went to Kenora every second weekend with his son. [ 25 ] On the other hand, the petitioner maintains that she had very limited contact with the respondent during the period in question although she did acknowledge that the respondent had access to her residence and would bring his son out to Kenora from time to time so his son could enjoy the beach and the woods. In her initial affidavit she took great pains to try and discount the Google Timeline printouts which reflected dates that the respondent maintained he had visited Kenora.

However, she later conceded to his attendance on a number of occasions when confronted with the various date stamped pictures contained in the respondent’s March 8, 2023, affidavit. However, the onus is on the respondent to prove the continuous cohabitation and he was only able to identify approximately 26 occasions that he was in the Kenora area during the approximately 160 week period in question. There were two occasions in the summer of 2017. There were a number of weekends between September 22, 2017 and January 1, 2018. There was a further weekend commencing on January 19, 2018.

On March 15, 2018, the parties took the trip to Cuba. There were a number of trips between April 13 and June 25, 2018. There was one weekend in August, 2018, one in September, 2018 and one in October, 2018. There were two trips in early February, 2019 and then there were no trips recorded until June 10, 2020. I am persuaded that the respondent has included the timeline for the entire period in question and that 23 weekends out of 160 weekends falls far short of evidencing a continuous conjugal relationship.

As indicated previously, the petitioner explained that she was working “24-7” for her employer in pursuit of advancing her career and that there were a number of occasions when the respondent attended with his son that she was not around due to work commitments. Although “24-7” is clearly an exaggeration of her work hours, a review of the pictures provided by the respondent does verify how few times the respondent’s son and daughter actually attended in Kenora and also how few times there were pictures of the petitioner and respondent socializing together.

Although the respondent denies having no personal items at the Kenora residence, he had no pictures to confirm that he did have possessions at the residence or that his children had their own bedrooms. All of the petitioner’s witnesses affirmed that they very rarely saw the respondent and that there was no evidence of his personal items at the residence. Sexual and personal behaviour [ 26 ] The parties did have sexual relations during the period in question.

The petitioner maintains that the primary motivation for having sexual relations with the respondent was the herpes which prevented her from feeling comfortable pursuing sexual relationships with other individuals. However, the petitioner also gave evidence that she did have some relationships with other individuals during the period in question. She identified as single on her Facebook profile and did explore some online dating sites. The petitioner maintains that the respondent had other relationships during the period in question and that she found him on a particular dating website for “positive” singles.

Although the respondent minimized having other relations during the period in question, he did not deny it. There was no cross-examination relating to either parties’ dating activities during the period in question. There is no real evidence of gifts during the period in question. I am persuaded that the personal behaviour during the period in question might be characterized as a on and off sexual relationship. As observed by Duval, J. in J.W. v L.W.T ., 2006 MBQB 157 at paragraph 38 : 38 . . .

The fact that the parties were involved in an intimate relationship does not equate to proof that they were residing, and intended to reside, together in a conjugal relationship. Services [ 27 ] There is very little evidence of the parties sharing household chores. There is very little evidence of the parties sharing meals together although it is conceded that there were at least some meals shared during the period in question. There is no evidence relating to them shopping together or doing laundry together.

There is evidence of a couple of household projects that the respondent contributed to with respect to the Kenora property, notably fence building and some painting. The installation of a backsplash was, according to the petitioner’s evidence, done in payment for the respondent’s shared trip to Cuba and it does appear this work was done the month after the trip took place. Social [ 28 ] There is very little evidence of the parties sharing in community or family activities. The exceptions noted are the 2017 New Year’s Eve occasion and the occasion of the respondent son’s birthday in 2017.

The respondent virtually never attended at the Kenora residence when the petitioner’s mother was staying there, and there is evidence that she spent frequent and lengthy periods of time there during the period in question. The other third parties who provided affidavits either never saw the respondent at the premises or saw him once or twice at most. There is no evidence that the parties socialized with other people when the respondent attended in Kenora.

Virtually all the pictures of the respondent and petitioner in Kenora are pictures of one or other of them with the respondent’s son on or near the water or in the woods. Similarly, there is very little evidence that the petitioner spent time at the respondent’s residence in Winnipeg. Her evidence is that she was only there on a few occasions and the respondent provided no real evidence to dispute that contention. The petitioner did attend in the summer of 2018 at the respondent’s mother’s home outside of Winnipeg on “camping trips” on a couple of occasions.

Societal [ 29 ] The petitioner’s evidence is that she identified and presented herself as a single person during the time in question and the third party affidavits filed in support of the petitioner’s position all support that. The respondent’s sister-in-law filed an affidavit on which she was cross-examined. Her evidence suggests that during the period of cohabitation prior to the period in question she and her husband, the respondent’s brother, were quite close and socialized regularly with the petitioner and respondent. However, during the period in question she only attended Kenora once.

She did say that the petitioner attended family events during the period in question. However, the only evidence as to specific family events are the camping weekends in the summer of 2018. There is no other evidence that she and her husband socialized with the petitioner and the respondent as a couple during the period in question. The only other event where the petitioner and respondent arguably presented as a couple was the March 2018 trip to Cuba.

However, the evidence is that the respondent had been expected to pay for his share of the trip, but did not, and ultimately installed the backsplash at the Kenora property to compensate for that. There is also the evidence of K.T. that the relationship between the parties was tense through much of the holiday and that the petitioner spent at least two nights of the trip sleeping on the sofa in K.T.’s room. She also suggested that the motivation for inviting the respondent on that trip was to reduce the cost per person by having double-occupancy instead of single occupancy for the petitioner.

As indicated as well, both parties filed their income tax returns as single during this entire period of time. Support (Economic) [ 30 ] There is no question that the parties did not share expenses. The petitioner bought the house in Kenora solely and received no contribution whatsoever from the respondent towards any aspect of paying for or maintaining the property. Similarly, the respondent was solely responsible for the rent of the Winnipeg apartment.

Although the petitioner did co-sign the lease, absolutely no payments were made by the petitioner for that property or any other expenses of the respondent in Winnipeg. The review of the tax returns shows that there was a significant disparity in the income of the parties. In 2017, the petitioner’s total income was $123,281.00. The respondents’ total income was $34,997.00. In 2018, the petitioner’s total income was $122,031.00 and the respondent’s total income was $39,689.00. In 2019, the petitioner’s total income was $129,671.00 and the respondent’s total income was $28,955.00 including $3,451.00 in RRSP income.

In 2020, the petitioner’s total income was $136,796.00 and the respondent’s total income was $9,178.00. The petitioner was single with no dependents and the respondent had two dependent children. Notwithstanding this significant disparity in income, there is no evidence that the petitioner made any contributions, advances or loans to the respondent to assist him financially during the period in question. [ 31 ] During the period in question, the only trip the parties took together was the March 2018 trip to Cuba. Other than that, the petitioner travelled frequently with girlfriends or her mother.

She clearly had the means to pay for the respondent accompanying her on vacation but did not. Children [ 32 ] The evidence discloses that during the period in question, the respondent’s son did attend with the respondent in Kenora on a few occasions. There is no evidence he had his own “children’s bedroom” set up in the Kenora residence.

There are in fact only approximately six different occasions/weekends that show pictures of the respondent’s son in Kenora, most of them being outdoors enjoying the beach or the woods, and a few others showing him in the residence in late 2017 celebrating his birthday, decorating a Christmas tree and at the New Year’s Eve visit. There are only one or two pictures showing the presence of the respondent’s daughter. There is no real evidence that the petitioner attended at the Winnipeg apartment during the period in question on more than just a few occasions.

This does not reflect a relationship of the petitioner with the respondent’s children as being a committed and dedicated stepmother. Although the parties did have sexual relations during this period of time, for most of the time the petitioner was on birth control. She maintained that she was directed by her doctor to discontinue birth control for medical reasons. The parties dispute as to whether the pregnancy was planned or unplanned. However, the pregnancy was not discovered until around August, 2020, when the parties had resumed cohabiting in a conjugal relationship.

Recommendation [ 33 ] Having analyzed all of the Molodowich factors as they relate to the conduct of the parties, and finding the petitioner’s evidence to be more credible than the respondent’s evidence, I am persuaded that during the period in question the parties were not in a conjugal relationship. [ 34 ] In the respondent’s June 22, 2022, affidavit he states that he moved with the petitioner into a residence in Stony Mountain, Manitoba, on October 5, 2020. However, he says that the parties planned to have their own children around the month of March, 2020. This is denied by the petitioner.

In any event, the petitioner did not relocate to Winnipeg until June, 2020, and there is no evidence that the respondent attended Kenora between February 10, 2019 and June 10, 2020. The petitioner says she started having thoughts of reconciling with the respondent in or about July, 2020. This timeframe is also referenced in the affidavits of the petitioner’s witnesses E.L. and L.R. I note that the petition sets out a date for commencement of cohabitation as July 1, 2020.

Although in the petitioner’s affidavit affirmed September 12, 2022, she references the parties resuming “dating” in mid-July, 2020, with the respondent moving into the condo she was staying in temporarily in Winnipeg after her relocation, I am prepared to accept and recommend the commencement of cohabitation as July 1, 2020, the date set out in the petition.

F. A. Lee Associate Judge