2024 MBKB 8, 2024 MBKB 8

Date: 20240119 Docket: FD 22-01-29401 (Winnipeg Centre) Indexed as: Rodgers v. Dhlamini Cited as: 2024 MBKB 8 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: DENISE ELIZABETH AGNES RODGERS, ) ) ) ) Benjamin Nkana Bassi and Oluwaseum Emmanuel Asiwaju for the petitioner ) ) petitioner, ) -and- ) ) ) SIZWE MAGIYA DHLAMINI, ) ) ) ) Adeoti Campbell for the respondent ) ) respondent. ) ) ) REPORT ISSUED: ) January 19, 2024 ASSOCIATE JUDGE LEE ASSOCIATE JUDGE’S REPORT ON COHABITATION DATE [ 1 ] The petitioner filed a petition on April 11, 2022, seeking an equal division of family property.

The petition asserts that cohabitation commenced on April 1, 2015 and ceased on July 31, 2021. [ 2 ] The respondent filed an answer on May 3, 2022. The respondent contests any relief sought by the petitioner. The respondent was representing himself when he filed his answer. He subsequently retained counsel and an amended answer was filed on September 14, 2022. In the amended answer, the respondent contests the date of cohabitation and the date that cohabitation ceased.

The respondent contests the division of family property as well as other relief including the petitioner’s claim for child support related to the respondent’s daughter Gwamile Dhlamini. In the amended answer the respondent asserts: “The parties did not reside in a common-law relationship. The nature of this relationship was landlord and tenant/roommate in a jointly owned residence. The parties maintained separate bedrooms and finances and they did not present themselves as a couple to the public.

The respondent has been married the entire period he resided in the same property as the petitioner, and he continues to be in a relationship with his wife. . .

.” [ 3 ] On January 30, 2023, the respondent filed a notice of motion seeking a reference to determine whether the parties ever cohabited in a common law relationship and if so, what the date of cohabitation and the date of separation were. The respondent filed an affidavit sworn January 30, 2023. The petitioner filed a responding affidavit sworn March 13, 2023, and the respondent filed a reply affidavit sworn June 16, 2023.

On June 29, 2023, Everett J. pronounced an order directing a reference for a report on the date that the parties commenced cohabitation and the date that the parties separated, if at all. [ 4 ] A first hearing for directions took place on July 25, 2023, and hearing dates were set.

There was a discussion about the filing of third party affidavits and it was determined that the parties would be entitled to file and serve a maximum of three third-party affidavits each and that the affidavits were to be filed no later than September 15, 2023. [ 5 ] Subsequent to the hearing for directions, the petitioner filed an “updated affidavit” affirmed September 11, 2023. The petitioner did not file any third party affidavits. On September 15, 2023, the respondent caused to be filed an affidavit of Hnin Dhlamini. On December 5, 2023, the respondent filed an affidavit of Jazmine Gregory.

On December 7, 2023, the respondent filed a further affidavit of himself. [ 6 ] The matter proceeded for cross-examination on affidavits commencing December 11, 2023. Counsel for the petitioner objected to the respondent’s filing of late affidavits. I did allow the filing of the late third party affidavit of Jazmine Gregory. However, I did not allow the affidavit of the respondent as the respondent had already filed his initial affidavit as well as a reply affidavit and the affidavit was also rife with content that was vexatious, argumentative and irrelevant to the proceeding.

That affidavit, which has been entered on the court file as document 41, was not considered in any way in connection with the proceeding before me. The respondent’s evidence as presented in his first affidavit [ 7 ] The respondent filed his initial affidavit sworn January 20, 2023, in which he claims that he never resided with the petitioner in a common law relationship. The respondent was born in South Africa and married on January 28, 2003. He and his wife had a child together who was born in 2007.

The respondent obtained a PHD in Power Systems Engineering in South Africa and in 2014 moved to Canada to complete an MBA which he started at Laval University in Quebec and completed at Memorial University in Newfoundland. He asserts in his affidavit that he and his wife had an agreement that while his wife remained in Myanmar he was allowed to date other women. At the beginning of 2015, he caused a company to be incorporated and maintained that he needed a Canadian director.

Apparently, an individual who had agreed to participate in that capacity resigned from the corporation and he subsequently asked the petitioner to become a director of the corporation. He had met the petitioner in January of 2015 and he maintains that he told her he was married and that his wife and daughter would visit Canada yearly. In paragraph 11 of his affidavit, he states that he and Denise dated from early March 2015 to June 2016.

He goes on to state that in April 2015 Denise advised that she was leaving her husband and getting her own apartment and that she asked if he would share her apartment with her and split the rent. He said he agreed to do this. He maintains he had his own room in the apartment. He states the following in paragraph 16 of his affidavit: 16. In the early days after we met, Denise would ask if we could get married. I always informed her that I was already married and had no plans to divorce. . . . [ 8 ] In mid-July 2015, he asked Denise if his daughter could come and stay with them in the apartment.

She did come to Canada in September, 2016. [ 9 ] At paragraph 21 of this affidavit the respondent states that he ended his dating relationship with Denise in June of 2016 although he continued sharing an apartment with her until the end of 2017. At the end of 2017, Denise moved to Swan River, Manitoba. The respondent then moved to Manitoba with his daughter and says that he and Denise agreed to share a residence. The respondent maintains that he and Denise would have sex on occasion but were no longer dating in 2018.

The respondent maintains he only bought food for himself and his daughter and that the parties never combined their finances. In 2018 the respondent had an opportunity to set up business operations in Reston, Manitoba. He says that he moved to Reston, Manitoba to a residence that Denise has never been to. However, he left his daughter in the care of Denise and says that he purchased a small house in Benito for his daughter to live in under the petitioner’s supervision.

He asserts that the parties made a deal that Denise would be added to the title of the house and could live there rent free in exchange for “watching” his daughter. The respondent says that in July 2019, his daughter moved to Reston with him and that Denise stayed in Benito and moved later in the summer/fall of 2019 to Winnipeg. The house in Benito was sold at the end of August, 2021, and the parties split the sale proceeds. The respondent maintains that he never resided in the Benito property and that the last time the parties slept together was in the spring of 2019.

The petitioner’s March 13, 2023 affidavit [ 10 ] The petitioner maintains that when she met the respondent he told her that he was looking for something long term and that he was divorced from his wife and had a daughter. She maintains that she had been recently separated from her husband and that the respondent pressured her into forming a committed relationship. The petitioner maintains that the respondent pleaded with her to stop taking birth control and to start trying to have a family together and that she agreed.

She confirmed that the respondent moved into her apartment on April 1, 2015 and claims that the parties were cohabiting as a couple. In 2016 the parties moved from the one bedroom basement apartment to another apartment which they acquired on a rent-to-own basis, receiving financial assistance from the petitioner’s parents to assist with a down payment. The petitioner claims that the respondent asked the petitioner to marry him in the summer of 2015 and that this news was shared with her parents. She maintains that the parties went through a commitment ceremony.

The petitioner maintains that between 2016 and 2019, she suffered three miscarriages as well as the death of a child who died 10 hours after his birth. The petitioner confirms that the respondent’s daughter moved in with the parties in 2016. According to the petitioner the respondent insisted that the parties move to Manitoba for job opportunities and because there was a more advanced fertility clinic in Manitoba.

[ 11 ] The petitioner travelled with the respondent’s daughter to Thailand to visit the child’s mother. The respondent was not able to travel and had requested that the petitioner travel with his daughter. The petitioner stayed with the respondent’s wife during this visit. Subsequently the respondent’s wife travelled to Manitoba to visit her daughter and stayed with the family in Swan River, Manitoba.

The petitioner maintains that the respondent and the petitioner stayed in a bedroom together during this visit. [ 12 ] The petitioner further maintains that she and the respondent purchased a cottage together in Newfoundland in 2015. The petitioner maintains that once again she was pressured by the respondent to obtain monies from her parents to assist in the purchase of this property and that the loan has never been repaid to her parents. [ 13 ] The petitioner travelled to South Africa to see a fertility specialist and during that trip met the respondent’s mother.

The petitioner maintains that she was introduced as the respondent’s wife. The petitioner did give birth to a son on July 9, 2019, who sadly died 10 hours after birth. The parties commenced a medical malpractice action against the Winnipeg Regional Health Authority and various medical staff in attendance at the time of the birth. After the death of the child, the parties continued appointments with Heartland Fertility Clinic and the petitioner asserts that the last appointment was in February, 2021.

The petitioner confirms that she became aware that the respondent was having affairs during the time that the parties were together. The property in Benito was sold and the petitioner moved to Winnipeg. According to the petitioner’s affidavit, the respondent’s daughter went to reside with the respondent in Reston in April, 2020. The petitioner maintains that the respondent and his daughter would visit the city and they would rent a hotel room for the weekend and asserted that in July 2021, the respondent decided to terminate their relationship.

The petitioner commenced a new relationship in August 2021, although the respondent needed to travel to South Africa for work and signed a letter dated August 31, 2021, naming the petitioner as stepmother to his daughter and appointing her as guardian while he was out of the country. The respondent’s second affidavit sworn June 16, 2023 [ 14 ] The respondent filed an affidavit in reply to the petitioner’s affidavit sworn March 13, 2023. In this affidavit, he states that there was a very limited period of time when he was exclusively in a relationship with Denise.

He attaches as an exhibit to the affidavit a chart which shows where he was residing and who he was sexually active with throughout the period from 2014 through 2022. This chart includes details of each month during this period of time stating where the respondent was residing, what his “sleeping room” was, who his sex partner was and the number of days he spent with Denise Rodgers (presumably as a sex partner). This chart does confirm that there were significant periods of time when he was with Denise Rodgers and another sex partner during the same period.

There were three other fairly long-term sex partners identified over this period of time in addition to the respondent’s wife who he did visit on occasion in Myanmar. However, this chart shows that he spent 125 days with Denise in 2015, 180 days with Denise in 2016, 153 days with Denise in 2017, 162 days with Denise in 2018, 169 days with Denise in 2019, 27 days with Denise in 2020 and 8 days with Denise in 2021. [ 15 ] The residences identified during this period were all residences that he resided at with Denise as well as the Reston property.

It appears that the chart indicates that the days together referred to days when the respondent had sexual activity with Denise and other sexual partners. The respondent denies that he asked Denise to marry him. In this affidavit, the respondent says that he advised Denise that he was moving to Manitoba and that Denise asked him not to leave Newfoundland but that he insisted and that she decided to follow him to Manitoba for further opportunities.

This is contrary to his evidence in his first affidavit in which he says that Denise moved to Manitoba and that he only came to Manitoba after Denise contacted him in February, 2018, and told him there was an employment opportunity there. The respondent denied that the cottage in Summerville, Newfoundland, was purchased jointly by the petitioner and the respondent and provided evidence that the property was transferred into the respondent’s name alone.

In this affidavit, the respondent maintains that he did not believe that having sexual relationships with other women at the same time amounted to adultery as he believed that adultery only occurred if a person within a monogamous committed relationship had sexual relationships with other individuals in such a relationship. According to the respondent, his daughter came to live with him in Reston in March, 2020, (not July 2019 as stated in his first affidavit), and that this this was around the time that Denise left Benito and moved to Winnipeg.

Petitioner’s September 11, 2023, affidavit [ 16 ] The petitioner did file an affidavit further responding to the respondent’s June 16, 2023, affidavit. Much of it is repetitive of her earlier affidavit. Cross-examination of the respondent [ 17 ] On cross-examination, the respondent characterized his relationship with the petitioner as a “fling” and this was repeated on many occasions throughout his cross-examination. He confirmed that he had sexual relationships with the petitioner throughout the period as shown in the chart he prepared as Exhibit A to his June 16, 2023, affidavit.

He also confirmed that his daughter resided with Denise for long periods of time from 2015 through March 2020. He further confirmed writing the letter naming Denise as guardian of his daughter in 2021 while he was travelling out of the country. [ 18 ] The respondent tried to suggest that he had doubts as to whether the child that was born in 2019 was his, although he confirmed that he never sought DNA testing to confirm whether the child was his. Cross-examination of the petitioner [ 19 ] There was a very short cross-examination of the petitioner.

The petitioner maintained that she treated and regarded the respondent’s child as her daughter and that they celebrated occasions as a family. Evidence of Hnin Dhlamini [ 20 ] Hnin Dhlamini is the respondent’s legal wife. She provided an affidavit on which she was cross-examined. She said that she was aware that her husband had other sexual partners which she felt she had no choice but to allow. She said that this was because it was part

of the South African culture to have multiple sexual partners although married. She said that she considered the petitioner to be her daughter’s nanny. In court she appeared quite disturbed when presented with the chart that the respondent had put into evidence disclosing his sexual partners including the petitioner over the period of time from 2014 to 2021 and their frequency. She expressed disbelief. She also had apparently not been aware that the respondent had a son with the petitioner.

She confirmed that the petitioner had brought her daughter to Thailand and stayed with her but that she was not happy about that. She also said that when she visited the petitioner and respondent and her daughter in Swan River in 2018, she was asked to stay in the basement but refused and rather she chose to stay in her daughter’s bedroom. [ 21 ] The respondent also filed the affidavit of Jazmine Gregory who was in a dating relationship with the respondent.

According to her affidavit, she started this relationship in May, 2018, and subsequently had a daughter on August 16, 2020, as a result of her relationship with the respondent. She also maintains that she had two miscarriages as a result of her relationship with the respondent. Counsel for the petitioner chose not to cross-examine Jazmine Gregory on her affidavit. During cross-examination of Hnin Dhlamini, she expressed doubt that the respondent was actually the father of the child born to Jazmine Gregory.

Application of the evidence to the relevant factors The parties resided together commencing April 15, 2015 and according to the respondent’s own evidence, he was actively engaged in sexual relations with the petitioner commencing in January, 2015, throughout the balance of 2015, 2016, 2017, 2018, 2019 and early 2020, with a few sexual encounters through the balance of 2020 and part of 2021. These relations took place in properties that the parties shared. The respondent had other sexual partners during much of this period of time.

However, there is no evidence that during this period of time the respondent had his daughter cared for by any other of these other identified sexual partners. There is no evidence that he owned property or resided at properties with the other sexual partners. During the time that the petitioner and respondent were together, the respondent actively participated with the petitioner in attempting to have a child. [ 22 ] There are pictures of the respondent visiting the petitioner and their baby in the hospital which portray a loving relationship, with pictures of the respondent’s daughter also being present.

The petitioner is named as the father on the birth certificate for the child and the medical malpractice action was commenced jointly by the petitioner and the respondent in the Court King’s Bench file number CI 21-01- 31328. In that statement of claim, the respondent seeks damages for a list of family members including himself, the petitioner, his daughter, the petitioner’s parents, and his mother.

In the statement of claim that was filed by counsel on behalf of both parties the petitioner is described as the partner of the respondent and mother of the infant. [ 23 ] There is evidence of the petitioner having shares in the corporation owned by the respondent. The petitioner also worked for that company. The petitioner went to church regularly with the respondent and attended the first communion of the respondent’s daughter. [ 24 ] The evidence confirms that the property in Benito was purchased jointly by the parties and that they held title as joint tenants.

There is evidence of the parties visiting the respondent’s mother in South Africa. [ 25 ] There is evidence that in September 2019, the respondent gifted two vehicles to the petitioner and that in May 2019, the petitioner had gifted a vehicle to the respondent. In each of the statements of gift, the donor and recipient of the gift are identified as spouses.

There is evidence that the respondent had a Blue Cross health plan in which the petitioner was named as a service recipient and that the petitioner received benefits with respect to hospital care she received around the time she gave birth to the parties’ deceased son. [ 26 ] There is evidence that the parties entered into an agreement of purchase and sale with respect to a property in Summerville, Newfoundland, although, title apparently issued in the name of the respondent alone.

There is evidence of the respondent paying for a number of different trips taken by the petitioner including the trip to South Africa and the trip to Thailand.

There is evidence of the parties jointly participating at fertility clinics and there is evidence that the respondent signed a guardianship letter on August 31, 2021, in which he describes the petitioner as the stepmother to his daughter as well as mother to his daughter’s brother (the deceased child). [ 27 ] In the face of all the evidence presented by the petitioner in support of the court determining that the parties cohabitated in a conjugal relationship, the only evidence presented by the respondent essentially is his insistence that his relationship with the petitioner was a mere fling and that he had other sexual partners during this time.

He appears to assert that since he has a legal wife, he cannot be in a common-law relationship with another woman. [ 28 ] I am persuaded that the parties were in a relationship that constitutes a common-law relationship when applying the various factors to the facts presented to the court. There are serious credibility issues within the evidence presented by the respondent, much of which contradicts itself. It is my recommendation that the commencement of cohabitation was April 1, 2015. [ 29 ] With respect to the date that cohabitation ceased, the petitioner maintains that the date was July 31, 2021.

However, there does not appear to be much controversy that the parties only had very sporadic contact after the beginning of March, 2020, at which time the respondent’s daughter went to live with him in Reston and the petitioner moved to Winnipeg. I do note that on May 28, 2020, the petitioner wrote an email to the respondent in which she stated, “I have not received a response from you regarding fertility, I am very confused as to why you refuse to speak to me.

I have not spoken to you in such a long time and you said that you had nothing further to discuss with me. . . .” [ 30 ] I am persuaded that there was a change in the relationship around this time and although there is no evidence of a specific date when the petitioner moved to Winnipeg and the respondent’s daughter moved to Reston, I would recommend that March 15, 2020, be the date that cohabitation ceased. [ 31 ] I am persuaded that the petitioner should have the costs of this reference proceeding on a Class 3 tariff basis payable forthwith.

F. A. Lee Associate Judge