Blois v. Blois, 2012 NSSC 273

SUPREME COURT OF NOVA SCOTIA Citation: Blois v. Blois, 2012 NSSC 273 Date: 20120803 Docket: STD. No. 070974 Registry: Truro Between: Arden Memory Blois -and- Steven Wade Blois LIBRARY HEADING Judge: The Honourable Justice Robert W. Wright Heard: May 28 and 29, 2012 in Truro, Nova Scotia Written Decision: August 3, 2012 Subject: Whether division of matrimonial property made under a Separation Agreement executed in 2007 subsequently invalidated by the continued cohabitation of the parties for some three years thereafter.

Summary: In January of 2007, the husband and wife signed and implemented a Separation Agreement whereby a complete division of matrimonial property was carried out. In the highly unusual facts of this case, the parties were still cohabiting at the time they entered into the Separation Agreement and which they continued to do for some three years thereafter before their final separation took place. In the meantime, the parties continued to collaborate on the operation of the rental properties and blueberry business owned by the wife.

In addition, the wife decided to build a new home for herself and engaged the husband to act as the general contractor. After cohabiting in the new house for a few months, their relationship fell apart, resulting in the present divorce action. The wife ’ s position is that on a proper

interpretation of the Separation Agreement, it remains valid and the division of matrimonial property already made in 2007 stands. The position of the husband is that the Separation Agreement is no longer valid and that the current matrimonial property (including the newly built house) should be divided equally between them. Issue: The question for the court to decide, in the

interpretation and application of the Separation Agreement, is whether the parties mutually consented to cohabit as husband and wife with reconciliation as the primary purpose of their cohabitation, for a period of one year or more. Result: Notwithstanding her continuing cohabitation with her husband, and the joint activities in which they engaged for some three

years after signing the Separation Agreement, the court was satisfied on the evidence overall that the wife never informed the intention to cohabit as husband and wife with reconciliation as the primary purpose. No true reconciliation ever came about, as contended by the husband. Because of the absence of the mutuality requirement stipulated by the Separation Agreement, it follows that the agreement remains valid. The division of property made contemporaneously with it therefore stands as the final resolution of this matter. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION.

QUOTES MUST BE FROM THE DECISION, NOT THE COVER SHEET. SUPREME COURT OF NOVA SCOTIA Citation: Blois v. Blois, 2012 NSSC 273 Date: 20120803Docket: STD. No. 070974 Registry: Truro Between: Arden Memory Blois Petitioner -and- Steven Wade Blois Respondent Decision Judge: The Honourable Justice Robert W. Wright Heard: May 28 and 29, 2012 at Truro, Nova Scotia Written Decision: August 3, 2012 Counsel: Counsel for the Petitioner - Lloyd Berliner and Sandra McCulloch Counsel for the Respondent - Peter Lederman, Q.C.

Wright, J. INTRODUCTION [ 1 ]The trial of this divorce action requires the Court to determine whether a Separation Agreement executed January 12, 2007 remains valid for purposes of the division of matrimonial property, notwithstanding the continued cohabitation of the parties for a period of some three years thereafter, or whether it was thereby rendered invalid. [ 2 ]If the agreement is found to be valid, the division of matrimonial property which was fully made by the parties at the time and in accordance with its terms, remains in effect and the matter is at an end.

If found to be invalid, the Court is asked by the respondent Mr. Blois to order a new division of matrimonial property as it existed when the parties separated for the final time in February of 2010. Under the latter scenario, Mr. Blois proposes an equal division of matrimonial property as it then existed whereas Ms. Blois, as an alternate position, proposes an unequal division in her favour. [ 3 ]The parties were married at age 18 on January 29, 1983 and had two children (born in 1984 and 1990 respectively). In the early years of the marriage, Mr. Blois was employed in local businesses while Ms.

Blois was primarily at home looking after the children. Later on, Mr. Blois started up his own logging business as well as a firewood business. Meanwhile, Ms. Blois was seasonally employed in the blueberry business and eventually became a blueberry grower herself on lands which she acquired either by inheritance or purchase. She also acquired three rental properties, consisting of two small rural properties and a four unit apartment building in Truro. [ 4 ]After 23 years of what Ms.

Blois described as a “ rocky ” marriage, the parties first separated on April 1, 2006 when she, accompanied by her 16 year old daughter Catherine, left the matrimonial home in Bass River and rented an apartment in Truro. She felt that the situation had become intolerable because of a lot of verbal and emotional (and sometimes physical) abuse that she attributed to her husband. She decided that her only option was to leave the matrimonial home and she did so. [ 5 ]At the time of the separation, Mrs.

Blois was about half-way through a two year community college education program in the faculty of Business Administration. She ultimately graduated with her diploma in June of 2007. [ 6 ]The physical separation of the parties was relatively short-lived. In either August or October of 2006 (the specific date is of no consequence), Ms. Blois and her daughter returned to the matrimonial home in Bass River. She explained that she did so because she thought it best for the children and that they came first.

She also explained that she intended to stay there only until she was able to get a job whereby she could eventually take care of herself financially. She denied that she had any intentions of reconciliation with her husband in moving back to the matrimonial home where she says they maintained separate bedrooms.

[ 7 ]In keeping with that intention, Ms. Blois sought a Separation Agreement from her husband. Mr. Blois explained that this was not something he wanted but that he eventually agreed to it because he loved her then and expected they would continue to live together for more than one year, as the proposed separation agreement would address. As far as he was concerned, they were back living together as a couple as of August and had reconciled. THE SEPARATION AGREEMENT [ 8 ]After both parties had had the benefit of independent legal advice, a Separation Agreement was executed on January 12, 2007.

Notwithstanding the opening recitals that the parties had separated on April 1, 2006 and had agreed to live separate and apart from each other for the future, paradoxically they were then still cohabiting in the Bass River home on an indefinite basis. The agreement also contained the usual clause that neither party would at any future time disturb or interfere with the other in person, business or manner of life and that they would in all things live as if they were unmarried. [ 9 ]The agreement then set out a comprehensive basis for the division of matrimonial property. Its main features were as follows: (

a) the wife was to transfer to the husband her interest in the Bass River matrimonial home; (

b) the wife was to transfer to the husband any interest she had in his businesses (logging and firewood); (

c) the husband was to transfer to the wife his interest in the various rental and farmland properties, all of which were registered in her name; (

d) provision was made for the division of personal property and matrimonial debts; and (

e) the husband was to make an equalization payment to the wife in the amount of $50,000 within one year thereafter. [ 10 ]Both parties expressly agreed that their division of assets and assumptions of liabilities effected a complete division of property. The agreement did not call for any spousal support or child support payments to be made by either party. [ 11 ]The key provision in this Separation Agreement at issue in the present case is the clause entitled “ INTENTION ” .

It reads as follows (at para 2(a)): This Agreement shall constitute a separation agreement for all purposes provided that if the parties, with their mutual consent, cohabit as husband and wife for a single period of less than one year with reconciliation as the primary purpose of their cohabitation, the provisions contained in this Agreement and any payment, conveyance or act made or done pursuant to the provisions contained in this Agreement will not be affected.

If the parties, with their mutual consent, cohabit as husband and wife for a period of one year or more with reconciliation as the primary purpose of the cohabitation, the provisions contained in this Agreement will become void. [ 12 ]The agreement further provided in the following paragraph that it was made in full and final satisfaction of the parties ’ respective rights and obligations arising out of the marriage, and in particular was intended to be in lieu of any remedy available as corollary relief under the Divorce Act or the Matrimonial Property Act ; and that it could be pleaded as a complete defence to any action brought by either party to assert a claim in respect of any matter dealt with by the agreement (the listed exceptions having no application here). [ 13 ]Given the events that followed (which will next be chronicled in this decision), the emerging question for the Court to decide is whether the parties mutually consented to cohabit as husband and wife with reconciliation as the primary purpose of their cohabitation, and for a period of one year or more.

That is the language of the agreement that the parties agreed to and the enforceability of the agreement hinges on the outcome of that question. CHRONOLOGY OF SUBSEQUENT EVENTS [ 14 ]Contemporaneously with the signing of the Separation Agreement, the parties signed and exchanged deeds whereby Ms. Blois relinquished her interest in the matrimonial home at Bass River and Mr. Blois relinquished his interest in all the rental properties and blueberry farmlands. [ 15 ]Ms. Blois had no reservations in carrying out the division of matrimonial property because she considered that although cohabitating,

they were not living together as husband and wife. Mr. Blois said that he had some qualms about the exchange of deeds in accordance with the Separation Agreement, but that he didn ’ t really mind making the exchange because of the comfort of Clause 2 (

a) in the agreement above recited and the fact that they were back living together. [ 16 ]In the months that followed, the parties continued to cohabit in the Bass River home. Mr. Blois considered that they were back together as husband and wife, notwithstanding the execution of the Separation Agreement in January of that year and the implementation of the division of matrimonial property thereunder. From Ms.

Blois ’ standpoint, they were only portraying themselves as being back together again, both for the benefit of their children at the time and also to avoid embarrassment in the community of being seen to be living together while legally separated. Thus it was, from her standpoint, that she agreed to join Mr. Blois on a vacation in Cuba in March of 2007. She said this was partly for the sake of appearances to others, but also that she had a selfish reason of simply wanting the enjoyment of taking such a trip. She maintained that reconciliation with Mr.

Blois was not the primary purpose of the trip. [ 17 ]It was not long after her graduation from the community college in June of 2007 that Ms. Blois says that she decided to build a new house for herself in Truro. It was something she said she wanted to do. She therefore began looking for a suitable building lot that would be closer for future employment.

She thought she could manage it financially through a combination of her $50,000 equalization payment under the Separation Agreement, a mortgage loan, a credit line from building suppliers and her revenues from the rental properties and blueberry farmlands. [ 18 ]Although Ms. Blois said that she had no intention that her husband would be living in the new house with her, she involved him extensively in both the design planning and the construction.

More specifically, she agreed to have him serve as the general contractor, not only because the house would cost less to build with his contacts in the industry, but because Mr. Blois apparently wanted to get a start on moving into the construction business. [ 19 ]It therefore came about that on December 7, 2007 Ms. Blois took title in her name only to a building lot located on Parkwood Drive in Truro Heights. She paid the lot purchase price of $38,000, using part of the equalization payment she had then received under the Separation Agreement. According to Mr.

Blois, he paid a $500 deposit on the lot with his own money. In any event, after they jointly consulted a home designer in the planning of the house, construction began in December of 2007 facilitated by a Scotia Bank mortgage which Ms. Blois took out in her own name. [ 20 ]In the meantime, the decision was taken to sell the Bass River home owned by Mr. Blois. The closing of that sale took place on or about November 13, 2007 but because the purchasers lived in the Canadian north and were not yet ready to move, an arrangement was struck whereby Mr. and Ms.

Blois were able to continue to reside in the Bass River home while the new house was being constructed. [ 21 ]With the benefit of that sale, Mr. Blois paid the $50,000 equalization payment to Ms. Blois as required by the Separation Agreement, after which he was left with net sale proceeds of his own in the amount of $77,000. [ 22 ]The ultimate disposition of those funds is vigorously disputed. Mr. Blois asserts that he gave the $77,000 in cash to Ms. Blois to be placed in her safety deposit box and to be used to help finance the construction costs.

He says he did this because they both wanted to build a house as a joint effort which would be a fresh start for them. He maintains that most of the $77,000 was used for that purpose over the course of construction, although he acknowledges that some unquantified portion of it was used to pay living expenses. [ 23 ]Ms. Blois, on the other hand, denies that this or any other sum of money was ever given to her by Mr. Blois to help finance the construction costs.

She maintains that she paid the entirety of the construction costs through a combination of the equalization payment, her mortgage loan, her credit line at Kent Building Supplies and her income from the rental properties and blueberry business. [ 24 ]Ms. Blois also testified that to compensate Mr. Blois for his role as general contractor, she purchased for him (on October 29, 2007) a wood processor at a total cost of $17,100 for use in his firewood business. This purchase also provided the added benefit of freeing up some of Mr.

Blois ’ time from the firewood business to devote to his role as general contractor. [ 25 ]I will return to this credibility issue later in this decision. Suffice it to say for purposes of this chronology that the construction of the Parkwood Drive house, which began in December of 2007, was substantially completed by December of 2008. During that year, the parties continued to cohabit at the Bass River home under their arrangement with its purchaser.

[ 26 ]Sometime during 2008, Ms. Blois began employment as a finance clerk with the Victorian Order of Nurses in Halifax, a job that she has maintained ever since (except for a few months ’ layoff in 2009) . [ 27 ]Also during that year, the parties continued to collaborate on the management of the rental property in Truro and the seasonal blueberry business on the farmlands owned by Ms. Blois. It is common ground that both parties collected the rents from time to time and that Mr. Blois carried out any necessary maintenance work. Mr. Blois also claimed to have paid the water bills and for some garbage removal. Ms.

Blois said that she was satisfied with this overall arrangement because her husband was still on the mortgage (the bank having refused to release him on the conveyance of the property under the Separation Agreement) which gave him reason to stay involved. [ 28 ]It is also common ground that Mr. Blois continued his involvement in the blueberry business by loading and delivering the berries to market, although Mr. Blois contends that he did more than just that (e.g., supplying fuel and paying for labour). He acknowledged, however, that the revenue of the business went to Ms. Blois.

He also acknowledged that it was Ms. Blois who made the mortgage payments on the rental property in Truro, which left a surplus of about $700 per month from the rental payments. [ 29 ]It was the evidence of Ms. Blois that once construction of the house was substantially completed in December, 2008 she then moved into it by herself, with Mr. Blois continuing to live in the Bass River home. However, in January of 2009 when Mr. Blois was not working and with his businesses in decline, she said that she agreed that he could move into the Parkwood Drive home as well on a temporary basis.

She said that she agreed that he could stay there, with a separate bedroom, under the same living arrangement they had maintained at the Bass River home. [ 30 ]It was the evidence of Mr. Blois, on the other hand, that both of them moved into the Parkwood Drive home together in December of 2008 and that they did so to live together as husband and wife. [ 31 ]By May of 2009, Mr. Blois was able to find employment in the drilling contractor industry as a result of which he was at home only on the weekends. As the summer months wore on, the relationship between the parties deteriorated badly.

In August or September, Ms. Blois asked Mr. Blois to leave the Parkwood Drive home which she said he agreed to at first but then refused. It was at this point, according to the evidence of Ms. Blois, that Mr. Blois first made the assertion that the Separation Agreement was not valid, an assertion with which she disagreed. From then on, things became even more difficult, compounded by the fact that Mr. Blois declared personal bankruptcy in December of that year (of which more will be said later). [ 32 ]In January of 2010, when Mr.

Blois refused to leave the Parkwood Drive home because he couldn ’ t afford to move out, Ms. Blois gave him $7,000 to enable him to get his own apartment and to set himself up. His delay in doing so erupted in a major argument in February when Ms. Blois said that Mr. Blois got physical with her and also vandalized her car. She called the police who removed him from the home whereupon she changed the locks on the doors. [ 33 ]Mr. Blois ’ response was to break into the home and take some furniture. He repeated these break-ins on two more occasions which lead Ms.

Blois to apply for, and obtain, both an Emergency Protection Order (on March 26, 2010) and a Peace Bond (on April 13, 2010). She also served on Mr. Blois a Notice of Exclusion from Property under the Protection of Property Act dated May 25, 2010 which was layered on top of the usual no contact clauses contained in the Recognizance under the Peace Bond. [ 34 ]Things only got worse in 2011 after the Peace Bond had expired. Sparks flew again sometime in March when Ms. Blois informed Mr. Blois that she was going to sell the Parkwood Drive house. Mr.

Blois took the position that she couldn ’ t do that because it was their matrimonial home. The property was nonetheless listed for sale by Ms. Blois. The situation was further aggravated by reason of the fact that Mr. Blois was then staying with his girlfriend living just across the street. [ 35 ]On March 25, 2011 Ms. Blois discovered that Mr. Blois had broken into the house again. She says that this time he removed some of her family pictures and personal gifts which have never been returned to her. She again called the police. Mr.

Blois ’ explanation for the break-in is that he went there to get his belongings, gathered up his clothes and then left.

[ 36 ]The nastiest turn of events took place soon thereafter on April 5 th when Mr. Blois yet again broke into the house. This time, as the photographs taken by Ms. Blois amply demonstrate, Mr. Blois engaged in several acts of vandalism by removing several cabinet doors, furniture drawers, closet doors and the medicine cabinet. In addition, he removed half the diningroom chairs. He also threw a number of toiletry products into the toilet bowl. Most egregiously of all, he urinated on Ms. Blois ’ bed.

All of this controlling behaviour was undoubtedly calculated to thwart the saleability of the home. [ 37 ]On the following day, April 6 th , Ms. Blois applied for and obtained a second Emergency Protection Order. Furthermore, about a month later, Mr. Blois was charged by the police with criminal harassment and uttering a death threat against Ms. Blois. Those charges are still pending. [ 38 ]In addition to the protective legal proceedings initiated by Ms. Blois above mentioned, she filed a Petition for Divorce on June 24, 2010 citing a separation date of April 1, 2006.

The petition seeks the incorporation of the Separation Agreement dated January 12, 2007 into the Corollary Relief Judgment. In his Answer filed December 30, 2010 Mr. Blois alleges that by virtue of Clause 2(

a) of the Separation Agreement, the division of property set out therein should be nullified and that the current matrimonial property should be divided equally under the Matrimonial Property Act . [ 39 ]On a contested motion subsequently heard by Justice Duncan on June 21, 2011 Ms. Blois sought and obtained an order of the court permitting the Parkwood Drive home to be sold and to have the sale proceeds held in trust pending a final resolution of this proceeding. The order granted also prohibited Mr. Blois from attending the property or otherwise interferring with any steps taken to sell it.

As of the date of trial, the property remains unsold. INTENTION OF THE PARTIES [ 40 ]The stated intention of the parties in paragraph 2(

a) of the Separation Agreement in essence is that their division of matrimonial property was to survive their continued cohabitation unless, for a period of one year or more, they cohabited by mutual consent with reconciliation as the primary purpose. As framed earlier, the emerging question for the court to decide is whether the parties did reach such mutual consent for a period of one year or more.

That presents a very difficult question of fact for the court to resolve in the highly unusual circumstances of this case. [ 41 ]The actual intent of the parties in their continued cohabitation for a period of some three years after the Separation Agreement was signed and implemented must be garnered from what they say in their evidence measured against their conduct. Those two measures are very difficult to reconcile in this case in what can only be described as a very confounding relationship over that three year period. [ 42 ]Ms.

Blois adamantly maintains that at no time after their initial separation in 2006 did she resume cohabitation with her husband with reconciliation as the primary purpose. She asserts that their continued cohabitation was initially, and remained throughout, for purposes of the best interests of the children, appearances within the community, and financial convenience (at first hers and later his). Ms. Blois accordingly maintains that the Separation Agreement is still valid and that there is therefore no matrimonial property remaining to be divided. [ 43 ]Mr.

Blois, on the other hand, adamantly maintains that as far as he was concerned, the parties had reconciled when they resumed cohabitation in late summer or early fall of 2006. He points to their continued joint management of the rental properties and the blueberry business between 2007-2009 and their joint efforts and contributions to the construction of the new house on Parkwood Drive during 2008.

He also points to their vacation trip to Cuba together in March of 2007 and their attendance as a couple to many family gatherings, including their 25 th anniversary (albeit one that was organized as a surprise party by other family members). [ 44 ]Mr. Blois asserts that all of this conduct and joint activity is reflective of their cohabitation by mutual consent, with reconciliation as the primary purpose of cohabitation for a period of one year or more.

He therefore contends that the Separation Agreement is no longer valid and that the matrimonial assets as they existed on the date of their final separation in February of 2010 should now be divided equally. These assets consist mainly of three categories of real property (the Parkwood Drive home, the three rental properties and the blueberry farmlands) which have an aggregate municipal assessed value in excess of $500,000.

[ 45 ]As indicated earlier, there are a number of incongruities in the evidence with Mr. Blois ’ position. Firstly, he not only agreed to the execution and implementation of the Separation Agreement (with the benefit of independent legal advice) within six months of their resumed cohabitation, but he also in effect affirmed the Separation Agreement approximately 11 months thereafter by: (

a) making the $50,000 equalization payment to Ms. Blois from the proceeds of the sale of the Bass River home, and (

b) attesting in the affidavit attached to the deed to that property that it had never been occupied by him and Ms. Blois as their matrimonial home since she released her interest in it by Quit Claim Deed (executed concurrently with the Separation Agreement). [ 46 ]Also troubling is the information provided by Mr. Blois to the Trustee in Bankruptcy when he made an Assignment dated December 22, 2009. At that point, Mr. Blois was still living at the Parkwood Drive home although it was only some two months later when the final separation took place. [ 47 ]In the Statement of Affairs signed by Mr. Blois under date of December 22, 2009 the following information is of note: (

a) he lists his address as RR#1 Bass River; (

b) he lists his marital status as “ Separated ” ; (

c) he lists himself as the only person in the household family unit and conjunctively lists the income of other members of the family unit at $0 (both these pieces of information are repeated in the Statement of Monthly Income and Expenses); and (

d) he lists his total assets at $28,000 (of which $25,000 pertains to motor vehicles) and states that he owns no real property. [ 48 ]The Trustee in Bankruptcy, Mr. Joseph Wilkie, who was called to verify these documents, confirmed that the various bankruptcy forms were prepared by his office from intake information provided by Mr. Blois. Mr. Wilkie also confirmed that the bankrupt is responsible for the accuracy of that information. He confirmed as well that Mr. Blois gave his office a copy of the Separation Agreement. Mr.

Blois was ultimately discharged from personal bankruptcy on September 23, 2010. [ 49 ]On cross-examination, Mr. Blois tried to explain away these bankruptcy forms essentially by saying that he simply provided the information requested of him by a staff person in the trustee ’ s office and that she filled out the forms which he then simply signed. The fact remains, however, that by his signature he has purported to verify that information. [ 50 ]It also appears that the Trustee completed, on Mr. Blois ’ behalf, his income tax returns for the tax years 2007-2009.

Again, his marital status is listed in the Notices of Assessment for those years as “ Separated ” . [ 51 ]Much of the evidence in this trial was taken up with the details surrounding the planning and construction of the new house on Parkwood Drive. It appears that the dispute over this asset, more than any other, is what is driving this litigation. [ 52 ]As recounted earlier, the parties are at loggerheads over whether this project was a joint endeavor in all respects representing a fresh start in their relationship, and whether Mr.

Blois made a substantial monetary contribution to it, and thus whether it should now be treated as a matrimonial asset. This is a perplexing question when trying to square all the surrounding evidence in this case. [ 53 ]What we do know is that title to the building lot was taken only in the name of Ms. Blois, as was the mortgage to finance the

construction. It is also undisputed that Ms. Blois made the mortgage payments and paid the accounts of the main building suppliers which were also in her name only (although Mr. Blois had signing authority on those accounts). Likewise, all the required provincial and municipal permits were issued in her name only. [ 54 ]Mr. Blois testified that he devoted approximately 80% of his time during 2008 to the construction of this house by hiring and managing the subtrades and doing a lot of the construction work with his own hands. He says he bought tools and materials and paid some of the subtrades himself.

Most significantly, he says that he gave to Ms. Blois the sum of $77,000 in cash, being the net proceeds of sale from the Bass River property, to be put in her safety deposit box for use as and when needed in the course of construction. [ 55 ]Ms. Blois maintains that she was ultimately responsible for payment of all the construction costs herself, or at least is unaware that her husband paid any subtrades with his own money. [ 56 ]This obviously raises a large credibility issue between the parties. In my assessment, this credibility issue is to be resolved in favour of Ms.

Blois for the following reasons. [ 57 ]Firstly, Mr. Blois is unable to produce a single document or record to corroborate his testimony about the input and use of the $77,000 amount. His explanation is that it is Ms. Blois who has all the records in her possession relating to the construction of the house. Ms. Blois, on the other hand, says that she has produced all such records which are in evidence at trial and which generally reflect that the building supplier accounts were in her name, with her husband having signing authority.

There are a couple of exceptions to this where subtrades, as well as the home designer, issued their invoices in the name of Mr. Blois but Ms. Blois maintains that all these invoices were ultimately paid by her. She says that there are no records pertaining to the $77,000 amount above referred to because she never received it. Mr. Blois is unable to prove otherwise. [ 58 ]Secondly, counsel for Ms. Blois drew out a number of inconsistencies between Mr. Blois ’ evidence at trial and that which he gave in a prior affidavit in this proceeding and at the Peace Bond hearing in Provincial Court.

The first inconsistency to be noted is that in his affidavit sworn on June 10, 2011 Mr. Blois deposed that he put the $77,000 in cash in a safety deposit box at the bank and later gave it to Ms. Blois to be used to pay construction costs of the new house. At trial, he made no mention of having his own safety deposit box but rather said that he gave this amount of money in cash directly to Ms. Blois. [ 59 ]The next inconsistency of note is derived from the affidavit evidence of Mr.

Blois that at the time of construction, he was not working elsewhere and could devote all of his time and resources to the project, coupled with the statement that he purchased all of the materials, including $40,000 to $50,000 worth from Kent Building Supplies. In his evidence at trial, Mr. Blois testified that he devoted approximately 80% of his time to the construction project (where he was still operating his firewood business). He also acknowledged at trial that all the Kent Building Supplies accounts were paid by Ms. Blois and that he merely had signing authority on those accounts.

His dubious explanation for this inconsistency was that the purchase of the materials, and picking them up using his signature, mean the same thing. [ 60 ]Another example is derived from the statement in Mr. Blois ’ affidavit that the decision in 2007 to sell the house in Bass River and to build in Truro was taken to benefit Ms. Blois because she worked in Halifax and was inconveniently commuting from Bass River. The evidence at trial is clear that Ms. Blois did not commence her employment in Halifax until sometime in 2008. [ 61 ]Beyond that, within the forum of his testimony at trial, Mr.

Blois was quick to explain away a number of his actions with answers of a facile or untenable nature. The following examples are of note: (

a) when asked on cross-examination why he did not deposit the $77,000 sale proceeds in a bank account, he replied that he didn ’ t want to pay tax on it. When asked what taxes he was referring to, he answered that he didn ’ t know (there are, of course, no capital gains taxes payable on the sale of a principal residence). Earlier in his direct testimony, he said that he gave Ms. Blois that money for deposit in her safety deposit box in case there were any claims from creditors (which is more likely the case); (

b) when asked in his direct testimony about his declaration of bankruptcy in December of 2009, Mr. Blois testified that Ms. Blois had wanted him to declare bankruptcy in their earlier discussions around October of 2009. However, he said that he refused to do so then because there was no need to do so with all the properties they owned and in which they had equity. That situation certainly did not change when he did declare bankruptcy about two months later. Moreover, as previously recited, in his Statement of Affairs he declared

that he did not own any real property; (

c) his explanation for saying that his wife did not need to join in signing the deed to the Bass River home in November of 2007 was because they were still in the first year after signing the Separation Agreement. At the same time, Mr. Blois maintains that they reconciled in August of 2006 and remained so until their final separation in February of 2010; (

d) at one point when he was asked whether his egregious acts of April 5, 2011in vandalizing the Parkwood Drive home were an attempt to stop its sale, Mr. Blois ’ answer was that he did what he could do to get his wife into court. [ 62 ]Last but not least, Mr. Blois ’ character traits have to be taken into account in assessing his credibility. He has obviously demonstrated vindictive and vengeful behaviour on a number of occasions.

Such abusive behaviour has been of such a level to result in the granting of two Emergency Protection Orders and a Peace Bond, in addition to which criminal charges are still pending. [ 63 ]All of this behaviour is indicative of a very controlling individual who will stretch the truth to get what he wants. A telling example of his controlling personality from his own testimony, in answer to the question as to why he removed various fixtures from the Parkwood Drive home on April 5, 2011 was that he “ wanted to show her I could do that ” .

Paradoxically, he then turned around and denied wanting to send her a message. [ 64 ]Ms. Blois, on the other hand, gave her evidence in a straightforward and consistent manner without exaggeration or embellishment. I therefore prefer her evidence over that of Mr. Blois where their testimony conflicts. Accordingly, I am not satisfied on a balance of probabilities that Ms. Blois ever did receive the sum of $77,000 in cash from her husband to help finance the costs of construction. [ 65 ]It is always open to the court, of course, to accept all, none or part of the evidence of any particular witness.

Even though I found parts of Mr. Blois ’ evidence to be overstated and unreliable, there is one key part of it which I do accept. I am satisfied that in his own mind, reconciliation was his primary purpose of the continued cohabitation with Ms. Blois. As he once put it, to him they were together (meaning as husband and wife).

This was the situation in his mind when they first resumed cohabitation in August or October of 2006 and which was undoubtedly reinforced by their continued collaboration in the operation of the rental properties and blueberry business and perhaps more so, the construction of the new home on Parkwood Drive and his eventual move into it. [ 66 ]Significantly, I am satisfied that Mr.

Blois would not have invested the time, energy and work effort that he did (with likely a modest but unquantified financial contribution from time to time) unless it was his intention that he would acquire an interest in the home as a matrimonial asset flowing from a perceived reconciliation.

I say perceived because there is no evidence that the parties ever directly addressed with one another the subject of reconciliation, or the effect of their continued cohabitation on the validity of the Separation Agreement, until their relationship soured once and for all in late 2009. [ 67 ]Was it ever the mutual intention of Ms. Blois to have resumed cohabitation for the primary purpose of reconciliation, for a period of one year or more? Clearly, such mutuality is required under the terms of the Separation Agreement in order to subsequently invalidate it.

The requirement for mutuality of the intention to reconcile is also illustrated in some of the cases to which I have been referred (see, for example, Ogilvy v. Ogilvy , 2006 CarswellOnt 5812 and Velisek v. Velisek , 2000 CarswellBC 928 ). I interject here, however, that these and other cases to which I have been referred are of very limited assistance in deciding the present case because of its highly unique fact situation. [ 68 ]I have no hesitation in accepting Ms. Blois ’ testimony that she did not resume cohabitation with her husband in October of 2006 for the primary purpose of reconciliation.

She then continued to press Mr. Blois for a Separation Agreement which, as recited earlier, was executed and fully implemented on January 12, 2007. Apart from her concern for the children and appearances in the community, she was still then a full-time student and at a financial disadvantage. [ 69 ]I also accept Ms.

Blois ’ testimony that once she graduated at the end of June, 2007 she wanted to strike out on her own with the acquisition and construction of a new house for herself in or near Truro. [ 70 ]It then becomes more difficult to reconcile her denial of continued cohabitation for the primary purpose of reconciliation with the

actions she took between 2007 and 2009. Perhaps the answer lies in that she may have led her husband on in some ways in their continued joint activities in order to achieve her goal of independence and self-sufficiency. [ 71 ]It is also possible that there may have been times prior to the summer of 2009 when Ms. Blois considered reconciliation of their marriage to still be an option. Indeed, an inroad testing her credibility at trial was made when she was referred to a transcript of her testimony at the Peace Bond hearing on April 13, 2010.

On that occasion, she said that she would not consider a reconciliation with anyone so abusive unless she could be shown for a year that the abuse was ended. She then went on to say, however, that after they had both moved into the new house in January of 2009, there was a time where she honestly did feel that a reconciliation could be possible (until August of 2009). [ 72 ]As stated earlier, Ms. Blois maintained in her trial evidence that at no time did she form the intention that their continued cohabitation be for the primary purpose of reconciliation.

She also maintained that it was not her expectation when the house was being built that her husband would live in it with her. Even if she wavered on that when she allowed her husband to move into the new house in January of 2009, it certainly didn ’ t last beyond August or September of that year when their relationship fell apart and she asked him to leave. [ 73 ]Although Ms.

Blois cannot be said to be completely blameless for the situation that was allowed to develop, I found her to be a generally credible witness and in the final analysis, accept her testimony that she did not form the intention that her continued cohabitation with her husband was for the primary purpose of reconciliation.

Even if she did consider it to be an option when she allowed her husband to move into the new house in January of 2009, it lasted far less than the minimum one year period prescribed by the Separation Agreement. [ 74 ]Additional corroborating factors consistent with this finding are that at no time after they resumed cohabitation was Ms. Blois ’ name restored to the joint bank account they had previously operated together (her husband having removed her from it after their initial separation in 2006). Also, Ms. Blois never again wore her wedding ring after that initial separation.

I also accept her evidence that she and her husband maintained separate bedrooms at both the Bass River and Parkwood Drive homes, at least for the most part. I further note that in her income tax returns for the years 2007-2009, Ms. Blois listed her marital status as “ Separated ” . [ 75 ]All things considered, I am satisfied that Ms. Blois, in resuming cohabitation with her husband, was never committed to attaining a reconciliation of their marriage. Without such an intent, a true reconciliation was not to be.

CONCLUSION [ 76 ]Because of the absence of mutual consent to cohabit as husband and wife with reconciliation as the primary purpose of their cohabitation for a period of one year or more, it follows that the Separation Agreement dated January 12, 2007 remains valid. The division of property made contemporaneously with it therefore stands as the final resolution of this matter. There is no further division of matrimonial property to be made. [ 77 ]This may appear to be a harsh result for Mr.

Blois in the circumstances but at the same time, it is hardly equitable that he be permitted to disclaim any ownership interest in any of the subject real property in his declarations to the Trustee in bankruptcy (and by extension his creditors), and to now be able to claim such an ownership interest against Ms. Blois in this proceeding. [ 78 ]In his closing arguments, counsel for Mr. Blois raised for the first time, as an alternate remedy, that his client should be awarded some form of compensation for his efforts in building the Parkwood Drive house.

Presumably, such a remedy would have to be in the nature of unjust enrichment. [ 79 ]The court, however, is not in a position to grant any such remedy in this proceeding. Firstly, no such remedy has ever been pleaded and it is beyond the scope of this divorce action. Secondly, there is not a sufficient evidentiary basis in any event upon which any such measure of compensation could be quantified (keeping in mind as well that Mr. Blois has not proven to the satisfaction of the court that he gave Ms. Blois the cash sum of $77,000 towards the construction costs).

[ 80 ]In addition to the Divorce Order to be now issued (the parties having satisfied all of its requirements under the Divorce Act in the course of the evidence given at trial), the order for judgment shall also contain a provision requiring Mr. Blois to forthwith return to Ms. Blois any and all items wrongfully taken from the Parkwood Drive home, including the diningroom chairs, the medicine cabinet, any cabinet doors or furniture drawers still missing, and any personal items owned by Ms.

Blois. [ 81 ]Lastly, I will leave it to the parties in the first instance to deal with the question of costs of this proceeding, should Ms. Blois decide to pursue their recovery. If the parties require the further intervention of the court in this regard, I would ask that written submissions be provided to the court by the end of September. J.