Candow v. Candow Estate, 2018 NLSC 67 (CanLII), http://canlii.ca/t/hr7ff

Credibility plays a major role in almost any legal dispute especially when it comes to determining the nature of a relationship.   This fact becomes quite evident in the case of Candow v. Candow Estate^[1].

Candow involved an application to the Supreme Court of Newfoundland and Labrador, by an estranged wife claiming an ownership interest in a property purchased by her late husband (the testator) long after their separation. The applicant argued that the property was a matrimonial home as they had reconciled.  The estranged couple had lived together at the subject property, for just over a year, after a 14-year separation.  The claim was that she had moved into the house with the intent of reconciling with the testator.

The applicant’s evidence was not found credible and the application was dismissed with costs payable to the Estate.

Background:

The applicant was married to the testator.  The couple separated in 1998 but maintained a cordial relationship and never divorced.

Approximately 14 years after the separation, the applicant moved from Ontario to her estranged husband’s Newfoundland home.  The evidence regarding the reason behind this move was contested by the respondent executor.  The two lived together for over a year until the applicant, again for reasons that were contradicted at trial, moved back to Ontario.

The testator died about two years later, having first executed a Last Will and Testament in which he named his lifelong friend as executor and bequeathed the subject property to his sister.  His sister was residing with him at the time of his death. At the time of the application, the testator’s sister continued to reside at the property.

The applicant brought an application pursuant to the Family Law Act, R.S.N.L. 1990 c. F-2, claiming entitlement to the property as being the surviving joint tenant of a matrimonial home and seeking equal division of matrimonial property including household contents, vehicles, and money.

Analysis:

The crux of the case before the Court was whether the applicant and the testator shared occupancy of the subject home as husband and wife: “People can live together, share household duties and expenses, socialize together and engage in sexual relations but that may not mean that they are doing so as spouses. Each case must be assessed on its individual facts and merits.”

In this case, the applicant’s evidence was fraught with inconsistencies.  She claimed to have moved in with the testator for reconciliation purposes. The documentary evidence and the evidence of other witnesses contradicted that assertion.  According to one of the key witnesses, when the applicant was asked if she and the testator had reconciled, her response had been: “Ugh, I wouldn’t touch that man with a 50-foot pole.”  In addition, the witnesses testified that although the two occasionally socialized together, they essentially lived separate lives.

There was also evidence suggesting that the testator had been in long-term relationships since his separation.  In fact, he was in a relationship with another woman at the time of his death.

The Court looked at various factors considered by previous authorities and specifically discussed the following:

• The parties’ interactions/relationship while they lived in the house
• The reason for the shared occupancy
• Fidelity
• The aftermath of the applicant’s stay at the house
• The applicant’s absence from the testator’s obituary
• The applicant’s CPP application and the contradictory information contained therein
• How the couple handled their affairs post-separation, and
• The applicant’s potential to gain from claiming the two had reconciled.

Ultimately, the applicant’s evidence was found not credible.  It is noteworthy that the applicant had not produced any witnesses to attest to the reconciliation.  She also did not adduce any corroborating evidence as to the assertion that they had cohabitated on other occasions over the years. For example, the couple’s adult children were not called to testify.  It was essentially her word against the various witnesses produced by the respondent and the documentary evidence which contradicted her testimony.

Thus, the Court found that the couple had not reconciled since their 1998 separation and that the subject property was not a matrimonial home.

Takeaways:

While factors such as attending social activities together, cooking and eating together, exclusivity, intimacy, support, and shared finances, are all relevant factors, they are not decisive in determining the nature of a relationship.  Each case will be reviewed on its own facts and merits.

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[1] Candow v. Candow Estate, 2018 NLSC 67