nan F.L.D. A.D. 1997 No. 489 J.C.S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: PATSY MAY HARRIS and WILLIAM HARVEY HARRIS RESPONDENT Mr. D. Z. Braun for the petitioner Mr. M. R. Vanstone for the respondent JUDGMENT WRIGHT J. May 19, 1998 The Issue [1] Did the parties cohabit for more than 90 days andthereby vitiate their agreement to live separate and apart? The Facts [2] The parties signed a contract described as aseparation agreement dated September 6, 1996. The agreement provided, among other things, that the parties would live separately and that neither would claim spousal support from [3] The following clause appears in the agreement: 11. NINETY-DAY TRIAL COHABITATION If at any future time, the Husband and the Wife, with their mutual consent, cohabit as Husband and Wife for period or periods totaling not more than 90 days with reconciliation as the primary purpose of the cohabitation, the provisions contained in this Agreement will not be affected, except as provided in this clause. If the Husband and the Wife with their mutual consent cohabit as Husband and Wife for period or periods totaling more than 90 days, with reconciliation as the primary purpose of the cohabitation, the provisions contained in this Agreement will become void, except that nothing in this Paragraph will affect or invalidate any payment, conveyance, or act made or done pursuant to the provisions of this [4] For the purposes of the trial, counsel proceeded on the basis that this instrument was separation agreement. express no opinion as to the nature of the agreement in light of the narrow issue presented to me for determination. The Evidence [5] Each of the parties testified, and they were the only persons called at the trial of the issue of cohabitation. There was no serious argument that they cohabited in 1997. The only issue was for how long. The petitioner swore that the parties cohabited for ten days in May 1997, and from June 28, 1997 until September 30, 1997. The respondent disputed that evidence and insisted that the period of cohabitation extended from June 30, 1997 until September 18. If the petitioner's account is accepted, the cohabitation would have extended for period of at least 95 days. [6] It is not necessary for me to review the evidence in this matter. In the final analysis, it comes to question of credibility. have no hesitation in accepting Mrs. Harris's account of what transpired. She struck me as an intelligent, articulate andforthright person, and more particularly as anindividual whose life has been largely controlled byher former spouse and by the events that occurredduring his search for new positions in the healthcare administration field. [7] I found the respondent evasive, argumentative andultimately untruthful in his answers to a number ofquestions. In particular, the following:(1) The circumstances surrounding thesigning of the so-called separationagreement and the reason he gave forit;(2) The untrue statements he set out inhis divorce petition in Ontario as toresidency, statements that he sworeas true in his subsequent applicationfor divorce judgment;(3) His action in applying for a defaultjudgment in the divorce proceedingswhen he knew the petitioner hadserved his solicitor with her Answer. [8] The parties clearly intended to re-establish their life together as husband and wife in the fullest sense. The respondent emphasized number of times that his desire was to see the family fully restored and together and that the employment he obtained at Melville, Saskatchewan finally permitted the family to be together in this province. It is clear also from the answers given by both parties that when they did reunite, their objective was to be fully reconciled and to re-establish their lives together in the fullest possible context. The fact that the reconciliation was short lived, regrettably, does not change that result. [9] Their cohabitation began on June 27, 1997 with their reunion in Wynyard, Saskatchewan and continued until September 30, 1997 when the respondent terminated the reconciliation. [10] The September 6, 1996 agreement was thereforerendered, in its words, "void". [11] was disposed to grant costs to the petitioner in this matter in light of the course the evidence took and the outcome, but concluded it would be more appropriate that the costs be dealt with by the trial judge in due course, mindful of the outcome of this particular proceeding.
In issue was whether the parties cohabited for more than 90 days and thereby vitiate their 1996 separation agreement to live separate and apart. The Agreement provided that neither would claim spousal support.HELD: 1)Credibility was determinative. The wife was articulate, intelligent and forthright while the husband was found to be evasive, argumentative and untruthful in answering a number of questions including the circumstances surrounding the signing of the agreement, the untrue statements he set out in his divorce petition in Ontario regarding his residency and in applying for default judgment when he knew the petitioner had served an Answer. 2)The agreement was rendered 'void' by the fact the parties cohabited for more than 90 days. 3)Costs were left to the trial judge.