Schnarr v. Schnarr
Because there was diametrically conflicting evidence on the purpose of the cohabitation and credibility findings were necessary, the matter could not properly be determined on motion; the motion judge's order was set aside and the issue remitted to trial for viva voce evidence.
Source-derived case information.
- Citation
- C43742
- Parties
- Appellant: Kim Marie Schnarr; Respondent: David Allan Schnarr
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 11 January 2006
- Procedural Posture
- Family Law Separation Agreement/cohabitation / Appeal From Motion Judge Decision (order Set Aside and Remitted to Trial)
- Outcome
- Appeal allowed; order of the motion judge set aside; matter remitted to the Superior Court of Justice for trial on the paragraph 24 issue and such other issues as the Superior Court orders.
- Legal Topics
- Cohabitation, Separation Agreement, Reconciliation, Credibility Findings, Motions Vs Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kim Marie Schnarr
Appellant
David Allan Schnarr
Respondent
Procedural Posture
Family Law Separation Agreement/cohabitation / Appeal From Motion Judge Decision (order Set Aside and Remitted to Trial)
Legal Issues
- 1 Whether cohabitation exceeded 90 days and was for the primary purpose of reconciliation under paragraph 24 of the separation agreement
- 2 Whether the issue could properly be determined on a motion or required a trial with viva voce evidence
- 3 Whether conflicting evidence required credibility findings by a trial judge
Ratio Decidendi
Because there was diametrically conflicting evidence on the purpose of the cohabitation and credibility findings were necessary, the matter could not properly be determined on motion; the motion judge's order was set aside and the issue remitted to trial for viva voce evidence.
Court Disposition
Appeal allowed; order of the motion judge set aside; matter remitted to the Superior Court of Justice for trial on the paragraph 24 issue and such other issues as the Superior Court orders.
Orders
- Appeal allowed
- Order of the motion judge set aside
Full Case Text
Judgment text and source record
1 paragraphs
Schnarr v. Schnarr Collection Decisions of the Court of Appeal Date 2006-01-11 Docket numbers C43742 Judges Feldman, Kathryn N.; Lang, Susan Elizabeth; LaForme, Harry Smith Subject Family Decision Content DATE: 20060111 DOCKET: C43742 COURT OF APPEAL FOR ONTARIO RE: DAVID ALLAN SCHNARR (Respondent) –AND- KIM MARIE SCHNARR (Appellant) BEFORE: FELDMAN, LANG AND LAFORME JJ.A. COUNSEL: Brigitte Gratl for the appellant Cameron D. Trotter for the respondent HEARD: January 9, 2006 On appeal from the judgment of R.C. Sills J. of the Superior Court of Justice, dated February 8, 2005 made at Kitchener, Ontario. ENDORSEMENT [1] Assuming that the husband and the wife had cohabited for more than 90 days, the issue was whether that cohabitation was for the “primary purpose” of reconciliation as set out in para. 24 of the parties’ separation agreement. [2] The matter came on as a long motion matter rather than as a trial of the issue. In our view, the matter could not properly be determined on motion. It involved diametrically conflicting evidence on the “purpose” of the cohabitation and required findings of credibility. That conflicting evidence could only be resolved after a trial of the issues on viva voce evidence. [3] Accordingly, we allow the appeal, set aside the order of the motion judge, and return the matter to the Superior Court of Justice for a trial of the issue under para. 24 together with such other issues as are ordered by the Superior Court. [4] In all the circumstances of this case, it is our view that there should be no order for costs of this appeal.