Gupta v. Kumar

2022 BCSC 860 Gupta v. Kumar IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Gupta v. Kumar, 2022 BCSC 860 Date: 20220520 Docket: E181263 Registry: Vancouver Between: Hemlata Gupta Claimant And: Munendra Kumar Respondent Before: The Honourable Madam Justice Morellato Reasons for Judgment Counsel for the Claimant: D.H. Goodwin Counsel for the Respondent: E.J. Waterman Place and Date of Hearing: Vancouver, B.C. June 29-30, 2021 July 2, 2021 September 7-8, 2021 Place and Date of Judgment: Vancouver, B.C. May 20, 2022 I. Introduction [1] The only issue before me in this family trial concerns the date the parties separated. The parties agreed they started living together in a marriage-like relationship on October 12, 2010. However, Ms. Gupta testified the parties separated on September 10, 2016, while Mr. Kumar testified they separated in February 2013. [2] It is not disputed that Ms. Gupta moved out of the family home in February 2013; what is disputed is whether the parties' marriage-like relationship continued, after their physical separation, until September 10, 2016. [3] Ms. Gupta filed her Notice of Family Claim on May 8, 2018. Accordingly, the date of separation informs the applicability of the two-year limitation period found in s. 198(2) of the Family Law Act, S.B.C. 2011, c. 25 [FLA], which could bar Ms. Gupta's claim to family property, and may limit her entitlement to spousal support. [4] During the trial, Ms. Gupta relied on a Punjabi interpreter. II. the surrounding circumstances [5] The parties met in September 2010. At that time, Ms. Gupta was a single mother, with two children from a previous marriage. She was on income assistance and Mr. Kumar was, and continues to be, a bus driver. [6] Mr. Kumar owns his home ("East Van Residence") with his mother, Chandra Wali Lal. He lived there with his mother and niece at the time he commenced his marriage-like relationship with Ms. Gupta. The upstairs area consists of three bedrooms. One of these bedrooms was shared between his mother and his niece. Another bedroom was occupied by Mr. Kumar. The East Van Residence also had two rental suites downstairs: a bachelor suite and a two-bedroom suite, both of which were rented out as a "mortgage helper" at the time the parties started living together. [7] Ms. Gupta moved into the East Van Residence with her two children on or about October 12, 2010. At that time, her daughter, Geetika, was 9 years old and her son, Shivan, was 11 years old. Ms. Gupta remains the sole guardian of these children. [8] At some point after moving into the East Van Residence in fall 2010, though she cannot pinpoint an exact date, Ms. Gupta went off income assistance. [9] Immediately after Ms. Gupta and her children moved into the East Van Residence in October 2010, Geetika and Shivan occupied the middle bedroom and Ms. Gupta occupied the first bedroom with Mr. Kumar. Mr. Kumar's mother continued living in the home, in the third upstairs bedroom, which she continued to share with her granddaughter, Mr. Kumar's niece. [10] In or about September 2011, Geetika and Shivan moved downstairs to the bachelor suite which was vacant. Ms. Gupta remained upstairs with Mr. Kumar. A. Cohabitation Agreement [11] On February 2, 2011, the parties attended a lawyer's office and executed a cohabitation agreement ("Cohabitation Agreement"). Ms. Gupta asserts this agreement is invalid and was signed by her under false pretences. Mr. Kumar adamantly testified this was not the case. That issue is not before me for determination but the facts surrounding this agreement provide narrative context. [12] The preamble to the Cohabitation Agreement provides, in part, as follows: WHEREAS: C. The Parties intend this Agreement to: (i) resolve all issues that may arise as to ownership and management of property, both real and personal, owned or hereafter to be owned by either of them, either jointly or severally; (ii) determine their management of, ownership in, and division of assets in the event of later separation; (iii) represent a settlement of their respective rights to and in property owned jointly and/or separately by either of them; (iv) constitute a full and complete release of any right, title or interest to claim in any property owned or possessed by the other; (v) represent a settlement with respect to spousal support; . F. Kumar together with his mother, Chandra Wati Lal as joint tenants [own] an undivided half share in fee simple of a property known as: [East Van Residence]. [13] The Cohabitation Agreement itself states in part: 3. The Parties agree that Gupta did not and shall not now or in future be entitled to any share or claim in and to the Property by virtue of the parties' co-habitation or subsequent marriage. Gupta understands and agrees to such consequences. 10. Neither Party shall at any time hereafter cause, claim or bring any action, at law or in equity, which contravenes or is contrary to the spirit and intent of this Agreement or offends the recitals contained herein. 14. In the event that the Parties separate at any time hereafter neither shall claim maintenance from the other or shall in any way seek or advance a claim for spousal support or any other benefit conferred or otherwise maintainable in law or equity . [14] On the same day, Ms. Gupta also signed a document which stated that the lawyer who had witnessed the Cohabitation Agreement "strongly advised" her "to seek independent legal advice from a lawyer of her choice prior to signing the Cohabitation Agreement. That same lawyer also offered to make the necessary arrangements. That document stated in part: 2. I have read the Cohabitation Agreement, understand the content and consequences thereof and have decided not to seek independent legal advice 3. I have seen, read and understand the Certificate of Independent Legal Advice attached hereto. 5. This statement is signed by me voluntarily without any pressure or coercion. [15] At the trial of this matter before me, Ms. Gupta testified that while she signed the Cohabitation Agreement, she did not understand its contents. She stated that she signed the Cohabitation Agreement after Mr. Kumar translated it for her; furthermore, she testified Mr. Kumar told her that he was "going to put [her] name on the property" and so "[she] agreed." Mr. Kumar testified that this was not at all the case, and that Ms. Gupta understood that the Cohabitation Agreement meant she could not lay claim to the East Van Residence. [16] The parties never opened a joint bank account. B. Daughter's Birth and the Aftermath [17] On September 10, 2012, the parties' daughter, Monishika, was born. Mr. Kumar testified that the parties' relationship deteriorated around this time, quarrels ensued, and the parties stopped having sexual relations. Ms. Gupta testified she continued to have sexual relations with Mr. Kumar. [18] On November 26, 2012, the parties had an argument that became heated and culminated in Mr. Kumar slapping Ms. Gupta. The police were called. Mr. Kumar was charged with assault, released on bail, and the Ministry of Children and Family Development ("MCFD") became involved. [19] On December 4, 2012, MCFD instituted a safety plan which provided that Mr. Kumar would move out of the family home, stay with his sister for a period of time, and the parties were not to have any contact with each other. However, the parties continued to see each against the terms of Mr. Kumar's bail conditions and he was arrested a second time. No charges were laid for breach of a no contact order; rather, the order was amended to permit contact between the parties, provided Ms. Gupta consented. The assault charge was stayed. Ms. Gupta moved down to the basement suite of the family home, in late December 2012 and January 2013. [20] Both Ms. Gupta and Mr. Kumar testified that in February 2013, a MCFD social worker advised them that Ms. Gupta should move out of the East Van Residence. Mr. Kumar found a rental basement suite for Ms. Gupta and the children on the same street as the East Van Residence, approximately five houses away. Mr. Kumar also helped Ms. Gupta move her belongings and those of the children into this suite. [21] Ms. Gupta testified that her relationship with Mr. Kumar continued after she moved out of the East Van Residence in February 2013. She testified Mr. Kumar came to her new place every day and spent "three to four and sometimes five hours with us". She stated that she left all her expensive clothes at the East Van Residence and that she and Mr. Kumar continued to have marital relations. She added that, in March or April 2013, both she and the children were going over to the East Van Residence from Friday to Sunday night every weekend. Geetika testified that Mr. Kumar came over to their apartment almost every day and that she and her brother would accompany their mother to the East Van Residence on weekends. [22] Mr. Kumar testified that after February 2013, he did not spend as much time with Ms. Gupta as she claims he did. He acknowledged he visited Mr. Gupta's home regularly during the week, about every other day, but said that he did so because he wanted to spend parenting time with his infant daughter. He explained that Monishika was very little, Ms. Gupta was possessive of their daughter, and he was afraid that Ms. Gupta would not let him see Monishika. [23] Mr. Kumar recalled that, two to three months after the parties separated in February 2013, Ms. Gupta began returning to the East Van Residence but only for short periods and, specifically, to allow him to see their daughter. Ms. Lal also gave evidence to this effect. [24] Mr. Kumar testified that by February 2013, he had physically and psychologically separated from Ms. Gupta; he intended at that time to end his relationship with her and he no longer wished to be in a marriage-like relationship. He described how he was working with Ms. Gupta and the MCFD to improve their relationship as Monishika's parents. [25] Sometime in mid-to-late 2013, Mr. Kumar began a romantic relationship with another woman, which continued for three years. Mr. Kumar explained he did not disclose this relationship to Ms. Gupta because it was a personal matter and because he was worried that if he did, Ms. Gupta would not let him see Monishika. His romantic relationship with the other woman was also a sensitive matter because she was married. [26] Ms. Gupta and the children resided in their basement suite from February 2013 until December 2013. She recalled there was mold in the walls and they therefore had to move. Mr. Kumar found another rental suite for Ms. Gupta and the children close by, a few streets away, on Somerville Street ("Somerville Residence"). [27] Ms. Gupta and her three children remained in the Somerville Residence until the end of 2014. Ms. Gupta testified that Mr. Kumar would spend five to six hours per day during the weekdays at the Somerville Residence and that, during the weekends, she and the children would go to the East Van Residence from Friday to Sunday night. Ms. Gupta continued to insist she be present whenever Mr. Kumar spent time with Monishika. [28] Mr. Kumar testified that he also visited Monishika during the week at the Somerville Residence, and says that he went there to see his daughter, but not to spend time with Ms. Gupta. He also stated that, while Ms. Gupta and Monishika would come over to the East Van Residence to visit on weekends, her two eldest children would not accompany her. Ms. Gupta testified her children would come with her during these visits. Ms. Lal says the two older children did not come over on the weekends, although Geetika testified that she and her brother did follow along. [29] Ms. Gupta testified that in 2013, during her time away from the East Van Residence, there were times when Mr. Kumar, herself and the children would go on family trips together, which also included Mr. Kumar's mother and his sister's family. These trips were to such places as Tacoma, Tulalip, Whistler, and Harrison Hotsprings. Mr. Kumar does not recall each of these trips but stated there were family trips prior to February 2013. He acknowledged there were occasions when he, Ms. Gupta and Monishika, along with Geetika and Shivan, would attend various family celebrations and events together. He testified that while they did so, they were not in a romantic or committed marriage-like relationship; nor were they attending these events as such. [30] Ms. Gupta's daughter, Geetika, testified that she recalled family trips with Mr. Kumar, her brother Shivan, Monishika, and Ms. Lal. Sometimes other families would accompany them on the trips. She was not sure whether Mr. Kumar and her mother spent time alone, or whether she was ever asked to babysit on these trips. [31] Ms. Gupta testified that she had gone to several different relatives' homes where Mr. Kumar introduced her as his wife. Mr. Kumar denies this was the case. He testified that Ms. Gupta attended family and social events such as birthday parties because Ms. Gupta would not allow Monishika to attend such events unless she also was present. [32] Mr. Kumar testified that the parties did not present themselves as a couple. Ms. Gupta was understood to be Monishika's mother and that she was connected to Mr. Kumar in that way; but not as his wife. Mr. Kumar testified that his social circle and his extended family knew the parties lived separately and that they were not in a marriage-like relationship. [33] Ms. Lal testified that if they were meeting someone new at such gatherings, her son would introduce the claimant as the mother of his daughter. After February 2013, when Ms. Gupta moved into the first basement suite, he would not refer to her as his girlfriend or partner because they were separated in his view. [34] Geetika testified that Mr. Kumar referred to her mom as his wife and used another term of endearment for her, "Kabita". The time frame these terms were used was not clear. C. Child Support Agreements and Enforcement Proceedings [35] On August 8, 2013, the MCFD wrote a letter to Mr. Kumar regarding his child support obligations to Monishika. [36] In November and December 2013, the parties signed a Child Support Agreement that was filed with the Provincial Court on December 12, 2013. The Agreement provided that Mr. Kumar was to pay Ms. Gupta child support, in accordance with the Federal Child Support Guidelines, of $597 per month commencing September 1, 2013. [37] Ms. Gupta was in receipt of income assistance after her move out of the family residence in 2013. She testified that a family maintenance worker asked Mr. Kumar to pay child support. [38] Ms. Gupta testified that Mr. Kumar would give her cheques for the child support payments and that she would then cash them and give him the cash back. Mr. Kumar denied this was the case. [39] Ms. Gupta stated that Mr. Kumar would say that the two of them "are together and not separate" and that he had already spent the money on Monishika. Ms. Gupta referred to her bank statements, which showed a pattern of depositing child support cheques and then immediate withdrawals in cash. It is not clear to me, however, if any conclusive inference can be drawn from that fact. [40] In February 2014, the Family Maintenance Enforcement Program ("FMEP") began enforcing Mr. Kumar's child support obligations. D. The Move Back to the East Van Residence in December 2014 [41] Ms. Gupta testified that Mr. Kumar persuaded her to move back into the East Van Residence and that, shortly after she moved into the downstairs suite with her children, he asked her to come live with him in a marriage-like relationship in February 2015. Mr. Kumar testified that Ms. Gupta did not move back to live with him; rather, she lived downstairs in a self-contained suite with the children. [42] Mr. Kumar testified that Ms. Gupta's prior tenancy was coming to an end and, with the assistance of the MCFD, the parties determined that it would be best for Ms. Gupta, Monishika and the two older children to rent the basement suite at his home. He rented the basement suite out at a reduced rent of $850 (instead of the $1200 he had been receiving from previous tenants), which assisted Ms. Gupta and the children with their accommodations; the arrangement meant he would also be closer to Monishika. He noted this was a beneficial situation for all concerned but it was not his intention for Ms. Gupta to live with him in a marriage-like relationship, nor did MCFD support such an arrangement. [43] Ms. Gupta filled out two Shelter Information Forms around this time period. The first was dated December 20, 2014 ("December 2014 Shelter Form") and the second was dated February 6, 2015 ("February 2015 Shelter Form"). Such forms are provided to the Ministry of Social Development and Social Innovation for housing allowances and Ms. Gupta relied on this program. The forms related to her rental of the two-bedroom self-contained basement suite at the East Van Residence. However, the authenticity of February 2015 Shelter Form is in issue. [44] In the executed December 2014 Shelter Form, the rent was set at $850 per month to commence on January 1, 2015, and it stated that there was to be one adult and three children living in the suite. That would have referred to Ms. Gupta, Shivan, Geetika and Monishika. The "client's portion" of the $850 monthly rent was $425 per month. Mr. Kumar was written in the form under "Name of registered owner" and he signed the form on December 20, 2014 as the landlord, and he testified to that effect. [45] The February 2015 Shelter Form also refers to the same rental terms with the $850 per month rent commencing on January 1, 2015 but it was changed to state that there was to be "0" adults and "2" children living in the suite. It also stated that "but sometimes" the client shares a kitchen or bathroom with the owner. [46] I understand that the shelter subsidy was approved and Ms. Gupta paid rent to Mr. Kumar until the end of December 2016. [47] Mr. Kumar testified that he first saw the February 2015 Shelter Form in December 2018. He testified that he did not sign this second form and that his signature was forged. A curious aspect of the February 2015 Shelter Form, which was tendered as a photocopy and not the original, is that it appears the printing on the form has been darkened by printing over-top of the original printing or text. Furthermore, Mr. Kumar's signature is quite faint on this form in comparison to the rest of the printing on the form. In addition, his signature on this, the February 2015 Shelter Form, appears to be quite different than the signature that he confirmed he placed on the December 2014 Shelter Form. No expert evidence was led in regard to whether this particular document was likely forged. Such evidence would have been of assistance to the Court. [48] Ms. Gupta explained that Mr. Kumar advised her to go on income assistance around this time because he needed the rental income. However, as I understood the evidence as a whole, Ms. Gupta was already on income assistance before she moved to the East Van Residence at the end of 2014. Further, Mr. Kumar was receiving more rental income for the two-bedroom basement suite, before renting to Ms. Gupta. [49] Geetika testified that sometime around late December 2014 or the beginning of January 2015, she moved back to Mr. Kumar's house in the basement suite with her brother, but that her mom moved upstairs "right away." Ms. Gupta's evidence is different than that of her daughter. Ms. Gupta testified that it was not until February 6, 2015, when Mr. Kumar presented a written agreement to her which was signed by his mother and himself ("2015 Disputed Letter Agreement") that she moved upstairs to live with him at that point. [50] At face value, the 2015 Disputed Letter Agreement recites a number of facts that would directly inform the issue of whether the parties continued to be in a marriage-like relationship in February 2015, and the content is weighted much in Ms. Gupta's favour. This document allegedly confirms Mr. Kumar's commitment to Ms. Gupta as his wife. Like the February 2015 Shelter Form, Mr. Kumar testified the 2015 Disputed Letter Agreement is a forged document. E. The February 2015 Disputed Letter Agreement [51] The 2015 Disputed Letter Agreement appears to be signed by Mr. Kumar, Ms. Gupta and Mr. Kumar's mother. However, the original of the letter was not produced, and as noted earlier, its authenticity was challenged by Mr. Kumar. The authenticity of Mr. Kumar's signature on the 2015 Disputed Letter Agreement was the subject of an expert opinion, which I address later in these Reasons. [52] The 2015 Disputed Letter Agreement states: Date: 6th February, 2015 I Munendra Kumar would like to inform that I started living with Hemlata Gupta from 12 Oct. 2010 at my house ... Still, I am living with Hemlata Gupta. And I will be living with her forever. With some of the reason, by social worker Jessy Bamaster said, Hemlata have to move out from this house ... That's why Hemlata moved out to another place with three children on Feb. 3, 2013 until December 30, 2014. That house was very close to my house And we both were in contact with each other and had a physical relationship as well during that time period. Both, me and Hemlata were coming to each other places with our consent. Hemlata Gupta and three children (Shivam, Geetika and Monishika) they were coming almost every weekend to our place with mine and my mum Chandra Wati Lal permission. In weekdays I did go to Hemlata place because she is my wife. We had lunch and sometimes dinner together in that time period. Majority of the time Hemlata Gupta with three children (Shivam Gupta, Geetika Gupta, Monishika Kirti Lal) lived with me with my consent. We lived peacefully together at my place ... She had full rights on me and She will have full rights on me. We're living as a husband and wife. Now today is 6 Feb, 2015, Hemlata and our daughter Monishika starting living we me upstairs with my consent . Shivam and Geetika lives downstairs because we don't have enough place to live upstairs. So I allowed them to live downstairs. They have lunch and dinner with us sometimes. All special occasions and traditions, we all celebrates together. It was our understanding that Hemlata will pay me 850 dollars per month started from 30 Dec, 2014 until 30 Dec, 2016 only. Hemlata will be helping by this money to pay the mortgage of this house. After 30 Dec, 2016, she doesn't have to pay me anything. She was taking that money from the assistance office because she was not working with my advice. Hemlata is my wife and will get the share of what is my property and other things what belongs to me. Nobody will force Hemlata to move out and to the children from my house ... My mum Chandra Wati Lal is the witness of this agreement. Today is 6 Feb, 2015, I Munendra Kumar, taking the oath of my God, the whole information that is stated is true. [all sic] [53] Mr. Kumar testified that he saw the 2015 Disputed Letter Agreement for the first time when his counsel provided him with a copy in December 2018; it had been disclosed by Ms. Gupta. During his direct evidence, he went through the letter, line-by-line, and provided a detailed explanation of why he would not have written the statements contained therein. [54] For example, Mr. Kumar noted that while the 2015 Disputed Letter Agreement purports that he took "the oath of my God", he testified he would never take such an oath because his faith would not allow it. He explained that he may affirm to tell the truth but is prohibited from taking an "oath of his God." In addition, Mr. Kumar testified that he never writes or refers to any date with the number of the day of the month appearing before the name of the month [i.e., "6th February, 2015" or "30, December, 2014"] as was done in the 2015 Disputed Letter Agreement. He testified however, that this is the way Ms. Gupta typically writes down various dates. [55] Mr. Kumar testified that he does not know how his signature appears at the bottom of the 2015 Disputed Letter Agreement but explained that he understood it could have been photoshopped and placed there in some way. Furthermore, Mr. Kumar was very clear that although the 2015 Disputed Letter Agreement refers to a physical relationship with Ms. Gupta, he would never sign a document with such information in it that his mother would be required to sign, since the document alludes to sexual activity or his sex life. [56] Mr. Kumar's mother, Ms. Lal also testified that she had not seen the letter until her son showed it to her in 2018. Ms. Lal, like Mr. Kumar, was unshaken in her testimony that she did not sign the 2015 Disputed Letter Agreement. [57] Mr. John Kovacs, the handwriting expert called by Ms. Gupta, clarified that he was not asked to provide his expert opinion on the legitimacy or authenticity of Ms. Lal's signature on the 2015 Disputed Letter Agreement. Rather, Mr. Kovacs, analyzed Mr. Kumar's signature on the 2015 Disputed Letter Agreement and compared it with his signatures on a number of other documents which contained his signature and were not in dispute. He provided a qualified opinion. [58] Mr. Kovacs found that there were certain features of Mr. Kumar's signature on the 2015 Disputed Letter Agreement that he found to be "very unique" and "significant", consistent with Mr. Kumar's signature on other documents. Nevertheless, he tendered a "qualified identification" not because of the handwriting itself, but because the resolution of the 2015 Disputed Letter Agreement presented to him, which was not an original copy, and was not clear. [59] Mr. Kovacs concluded the copy of the 2015 Disputed Letter Agreement tendered into evidence by Ms. Gupta had been reproduced multiple times. Mr. Kovacs testified that if he had been provided an original copy of the 2015 Disputed Letter Agreement, his opinion would have been more conclusive. He explained that the copy of the 2015 Disputed Letter Agreement was a poor-quality reproduction of the document, and that one must always be cautious about tendering opinions in such circumstances. [60] Mr. Kovacs did testify that his opinion "is towards identification of the specimen writer", meaning he thought Mr. Kumar's signature was on the 2015 Disputed Letter Agreement. However, he noted "he could not account for all aspects of the signature" because of the reproduction's poor quality. Nevertheless, he did opine that it was "more probable than not" that it was Mr. Kumar's signature that appeared on the 2015 Disputed Letter Agreement. [61] On cross-examination, Mr. Kovacs acknowledged that his "was not the strongest opinion I could give but there are distinctive habits in Mr. Kumar's handwriting." While he did not see signs in the 2015 Disputed Letter Agreement to indicate it had been tampered with, he qualified his opinion in this regard as well, commenting "but again I am dealing with a poor document." [62] Mr. Kovacs affirmed on cross-examination that he "couldn't tell" if the 2015 Disputed Letter Agreement had been photoshopped. He opined that "in the photocopying process there is often fuzziness around the edges" which can be identified from the original but not from the photocopy provided to him for his for analysis. [63] Mr. Kovacs also testified that there was another method of fixing a signature on the document other than through photocopying; that is, by transposing the signature electronically on the document, but that one had to be "computer-wise" to do it. F. Living Circumstances at the East Van Residence in January 2015 to September 2016 [64] The parties' testimony regarding their living situation during this time frame diverged significantly. [65] As noted earlier in these Reasons, Ms. Gupta testified that she moved upstairs with Monishika after signing the 2015 Disputed Letter Agreement on February 6, 2015, and that she and Monishika started sharing a bedroom with Mr. Kumar at that time. She stated that she was doing all the cooking for the family, that her other two children lived downstairs, and that she brought their meals down to them. She added that her children would come upstairs for meals on weekends and when guests came. [66] Mr. Kumar testified that for the first two months or so of 2015, Ms. Gupta did not come upstairs. Eventually, Ms. Gupta allowed him to spend more time with his daughter. Ms. Gupta would come upstairs sometimes to share cooking and food and he would eat upstairs with Monishika, his mother and Ms. Gupta. He testified that when Ms. Gupta started coming upstairs with Monishika, he was afraid that if he objected, Ms. Gupta would not let him see his daughter. He also testified that usually Ms. Gupta would bring food downstairs to her children and would eat with them. He also testified that sometimes Ms. Gupta came upstairs to eat and the children would also come upstairs to eat. [67] Mr. Kumar acknowledged that sometimes Ms. Gupta would bring Monishika upstairs to sleep in his bed and when Monishika fell asleep, she would leave the bedroom and go watch the television, which was also upstairs. [68] Geetika testified that her mother would eat upstairs and bring meals down to her and her brother. She and her brother would go upstairs when there were guests or special prayers, at least three or four times a month. [69] Ms. Lal confirmed that she owned the East Van Residence with her son. She said that her granddaughter, Mr. Kumar's niece, also lives with them upstairs when she is going to school. She testified that no one is living with them upstairs now. [70] Ms. Lal testified that Ms. Gupta did not live upstairs at the East Van Residence in 2015; rather, she came upstairs two or three time a week. Ms. Lal also did not accept that Ms. Gupta did most of the cooking. Ms. Lal acknowledged that after Ms. Gupta moved to the downstairs suite around 2015, she would sometimes come upstairs to cook and watch TV. Other times, she would take Monishika to eat and sleep downstairs. [71] Ms. Lal also stated that Ms. Gupta would bring food she cooked down to her children and sometimes she would eat upstairs, sometimes on her own. Then, in 2016 she stopped coming upstairs, although she was not clear when this occurred. G. Photographs of Extended Family Gatherings and Trips [72] Ms. Gupta gave evidence about various photographs showing her in activities with Mr. Kumar and his relatives from 2013 to 2016, including: - photographs of Monishika's 1st Birthday on September 13, 2013; - photographs of birthday party of a niece at Mr. Kumar's brother's house in April 2014; - photographs showing Mr. Kumar at a singing competition in the summer of 2014; - photographs of Monishika's 2nd Birthday on September 13, 2014, upstairs in Mr. Kumar's home with all three children with Mr. Kumar's relatives present including his Mother; - photographs of Mr. Kumar holding Monishika, and Ms. Gupta by her side; taken at the Aquarium on October 9, 2014; - photographs of Mr. Kumar sleeping with Monishika taken by Ms. Gupta after she had woken up on November 8, 2014; - -, photographs of Monishika's 3rd birthday party in Mr. Kumar's home on September 10, 2015 with his Mother and other relatives present; - photograph of Mr. Kumar's nephew from Calgary holding Monishika on September 12, 2015; - photographs of religious practice of sisters tying things to brothers to make them happy and long life on September 12, 2015; - photographs on September 13, 2015 of Ms. Gupta working in kitchen with Mr. Kumar's sister, Jasmine, his daughter-in-law and his nephew. Lower photograph of Mr. Kumar's Mother, his brother-in-law and Mr. Kumar; - photographs of birthday party for Mr. Kumar's nephew taking place at his brother's house with Ms. Gupta present on October 24, 2015; - photographs of Mr. Kumar's Mother, Mr. Kumar and Ms. Gupta at a Bollywood event on November 28, 2015; - photographs of Mr. Kumar's relatives and Ms. Gupta at a Christmas celebration in December 2015; - photographs of Ms. Gupta with Mr. Kumar, his Mother and other relatives of Mr. Kumar at his nephew's birthday party on January 5, 2016; - photographs of Geetika's 15th birthday party upstairs in Mr. Kumar's house with members from Mr. Kumar's family on January 31, 2016; - photographs taken at Mr. Kumar's brother's house on February 5, 2016 and at Mr. Kumar's sister's house on February 7, 2016; - photographs of a birthday party at Mr. Kumar's sister's house on February 7, 2016; - photographs of Mr. Kumar's Uncle's birthday party at Mr. Kumar's brother's house, Rohit Prakash on April 17, 2016; - photographs of the trip to Las Vegas with Mr. Kumar, Ms. Gupta and Monishika on May 19-21, 2016; - photographs of 65th birthday party for Rohit on April 17, 2016. [73] Mr. Kumar does not dispute the authenticity of these photographs. He says they simply depict a number of family and social events that Ms. Gupta, Monishika and he attended after February 2013. Mr. Kumar testified, once again, that Ms. Gupta was present at such events because she would prohibit him from taking Monishika to them otherwise. He added that each of the events depicted in these photographs were photographs of events attended by Mr. Kumar's family and friends, who knew that Ms. Gupta was Monishika's mother and that the parties were living separate and apart. [74] Ms. Gupta took a photograph of Mr. Kumar sleeping with Monishika in his bedroom. Mr. Kumar testified that he did sleep with Monishika but not with Ms. Gupta. Ms. Lal testified that sometimes Ms. Gupta would bring Monishika upstairs to sleep in Mr. Kumar's bedroom. [75] Mr. Kumar did not attend events exclusively with Ms. Gupta's friends or family and there are no photographs of such events. Mr. Kumar took no issue with Ms. Gupta taking Monishika to social events on her own. Ms. Gupta acknowledged that she did not attend events with Mr. Kumar's family if Monishika was not present. [76] When asked on cross-examination whether she attended any events just with Mr. Kumar, Ms. Gupta responded that they went to the casino two or three times together and her mother-in-law took care of Monishika. It was not clear when this occurred. H. The 2016 Las Vegas Trip [77] Ms. Gupta introduced photographs of a trip that she, Mr. Kumar and Monishika took to Las Vegas in May 2016. She testified that this trip was a Mother's Day gift to her. Ms. Gupta testified that she and Mr. Kumar shared a bed in Las Vegas and that Monishika had her own bed. [78] Mr. Kumar denied the trip to Las Vegas was a Mother's Day gift to Ms. Gupta. He testified that this was not a romantic vacation and the parties did not sleep together. Mr. Kumar testified the claimant only attended because she would not let Monishika travel with him unless she was with them. Mr. Kumar explained that Monishika had asked him repeatedly if he would take her on an airplane and so he took her to Las Vegas to satisfy her wish. He said he specifically chose Las Vegas because it offered many places for him to go when Monishika was sleeping, such as casinos, so that he did not have to spend time with Ms. Gupta alone. [79] Mr. Kumar was paying Ms. Gupta child support payments when the parties went to Las Vegas with Monishika. I. The September 2016 Separation [80] Ms. Gupta testified that she and Mr. Kumar had an ongoing physical relationship up until the time of their separation on September 8, 2016. Again, Mr. Kumar denies this was the case. [81] Ms. Gupta states on September 8, 2016 she learned that Mr. Kumar was having an affair and chose to end the relationship due to his conduct. She went to live downstairs with Monishika. She explains that she prepared and attended Monishika's birthday on September 10, 2016 before she moved downstairs and separating on a permanent basis. [82] Ms. Gupta paid rent for the basement suite until the end of December 2016. J. Further Court Proceedings [83] There are a number of court proceedings which preceded the case before me. I have heard about some but certainly not all of them. [84] Mr. Kumar testified that Ms. Gupta would not agree to equal parenting time with Monishika. Accordingly, he filed an application for equal parenting time in Provincial Court on May 27, 2016, after returning from their trip to Las Vegas. He also sought an order to be able to travel abroad with Monishika. Judge Low granted an order on May 31, 2017 which provided unsupervised parenting time to Mr. Kumar every week on Monday and Thursday from 3:30 p.m. to 9:00 p.m., as well as every weekend from Friday at 8:00 p.m. to Sunday at 10:00 a.m. He was also granted parenting time during summer holiday and special events during the year. [85] On June 4, 2017, Ms. Gupta called the police alleging Mr. Kumar assaulted her. [86] Only July 10, 2017, Judge Bayliff required Mr. Kumar to have his parenting time supervised by his mother until the criminal court proceedings were resolved, or until the terms were changed or resolved. [87] Ms. Gupta brought her own application later in 2017, in which she sought the following Provincial Court orders: i. that Mr. Kumar "not be able to have parenting time with my daughter without my presence"; ii. "That I receive spousal support, as the Respondent has not financially contributed to me and I am a single mother supporting my daughter." [88] In her supporting affidavit, dated November 18, 2016, Ms. Gupta deposes, among other things, that she and Mr. Kumar had been living separate and apart for two years: 4. The Respondent [Mr. Kumar] and I have lived separate for 2 years now. During these two years, I reside [sic] in the basement suite of the residence, while the Respondent resides upstairs. 5. The Respondent is indifferent towards our daughter and does not pay attention to her or take care of her. 6. I am the primary caretaker of our daughter. I take care of her daily needs I am with our daughter each and every day. 7. I do not want the Respondent to have any time alone with the [sic] daughter, as he and his environment and surroundings are a negative and damaging influence on her. [89] At trial, Ms. Gupta testified that she had signed this affidavit without having read it. She testified that the affidavit contained an error, and that it should have said "2 months" rather than "2 years." She also noted her child's name was incorrectly stated to be Monishika Kumar rather than Monishika Lal. [90] On January 2, 2018, Mr. Kumar informed Ms. Gupta that he would be taking Monishika on vacation during spring break. Days later, Ms. Gupta filed a report alleging that Mr. Kumar sexually interfered with Monishika. [91] On February 14, 2018, MCFD sent a letter to Mr. Kumar confirming that it has no child protection concerns regarding Monishika. [92] On April 13, 2018, the charge against Mr. Kumar regarding his alleged assault of Ms. Gupta on June 4, 2017 was heard. Judge Gove found Mr. Kumar was not guilty of assaulting Ms. Gupta. His Honour reasoned, in part, that Ms. Gupta "clearly was dishonest in an affidavit", and "if not evasive, certainly so determined to paint Kumar in a bad light that it stretched her credibility." [93] On May 8, 2018, Ms. Gupta filed her Notice of Family Claim, alleging the Cohabitation Agreement is void. [94] In 2019, Ms. Gupta filed a second report alleging Mr. Kumar sexually interfered with Monishika. No action has been taken by the authorities against Mr. Kumar. [95] On March 7, 2019, Judge Doherty denied Ms. Gupta's application for an ex parte protection order. On April 9, 2019, Judge Gove dismissed Ms. Gupta's new application for a protection order. Ms. Gupta was ordered not to file any further applications without leave of the court. Ms. Gupta was also ordered to serve Mr. Kumar and his counsel with such applications. [96] In September 10, 2019, Judge Lee set aside the Child Support Agreement filed December 12, 2013 and ordered, among other things, that Mr. Kumar pay $793 per month child support commencing October 1, 2019. III. LEGAL ANALYSIS AND DISCUSSION [97] Subsection 3(4) of the FLA provides the following guidance on what constitutes a "separation" between parties in a marriage-like relationship: (4) For the purposes of this Act, (a) spouses may be separated despite continuing to live in the same residence, and (b) the court may consider, as evidence of separation, i. communication, by one spouse to the other spouse, of an intention to separate permanently, and ii. an action, taken by a spouse, that demonstrates the spouse's intention to separate permanently. [98] Counsel for Mr. Kumar correctly points out that the intention to separate does not need to be mutual, as reflected in the language of s. 3(4) of the FLA and confirmed in the case law: see Nearing v. Sauer, 2015 BCSC 58 at para. 54; Ishebabi v. Temu, 2015 BCSC 1321 at para. 38; Surrett v. Butkiewicz, 2018 BCSC 2194 at para. 11. It is not necessary for the parties to agree on their separation or their date of separation date in order to be considered separated for purposes of the FLA. [99] In the instant case, Mr. Kumar testified that he formed the intention to separate from Ms. Gupta in February 2013. Ms. Gupta asserts her move out of the East Van Residence was orchestrated by MCFD, suggesting it did not reflect her intention to separate or that of Mr. Kumar. However, I accept Mr. Kumar's testimony that while he was working with MCFD at that time, his focus was on maintaining his relationship with his daughter Monishika, rather than his former marriage-like relationship with Ms. Gupta. [100] I am mindful that the intention of one party to separate is not sufficient to establish a legal separation. As Justice Fleming reasons in Nearing, more is required: [54] It is clear that a meeting of the minds on the intention to separate is not required. A physical separation, combined with one party's intention to live separate and apart, is sufficient: Dhillon v. Dhillon, [1998] B.C.J. No. 823 (C.A.). Based on the evidence, I am satisfied that the claimant formed the intention to live separate and apart from the respondent well before he left the home in August 2009. This however does not end the matter. The case law also requires that the spouse who wishes to separate take action consistent with that intention. [101] I find that Mr. Kumar did "take action" that reflected his intention to separate from Ms. Gupta by no longer living with her and focusing, instead, on maintaining his bond and relationship with his infant daughter. Indeed, as the year progressed he continued to live separate and apart from Ms. Gupta. Later that year, when she and the children needed to move out of their basement suite, he continued to live separate and apart as Ms. Gupta moved to a second new location at the Somerville Residence. [102] In the instant case, the physical assault and the conflict between the parties after Monishika's birth in 2012 were clearly factors that informed the parties' separation in February 2013. While it may very well be the case that Ms. Gupta viewed the physical separation as simply accommodating MCFD's concerns about the prior assault by Mr. Kumar, Mr. Kumar made it very clear that he viewed the matter differently. He was in favour of the physical separation from Ms. Gupta, but not from his infant daughter. I accept his evidence that he was not romantically involved with Ms. Gupta when the parties physically separated in February 2013. I also accept his evidence that his frequent visits to her places of residence were motivated by the desire to spend time with his daughter. I find that by February 2013 he had lost his romantic commitment and intimate physical attachment to Ms. Gupta; indeed he became involved in a relationship with another woman later that year, which lasted for approximately three years. [103] In reviewing the factual matrix before me, I have also considered the entire context within which the parties continued to interact following their physical separation in February 2013: see J.J.G v. K.M.A., 2009 BCSC 1056 at paras. 33-39; Austin v. Goerz, 2007 BCCA 586; Takacs v. Gallo (1998), 157 D.L.R. (4th) 623 at paras. 53 -55 (B.C.C.A.); Jones v. Davidson, 2022 BCCA 31 at para. 24. I have taken a broad view, mindful of the diversity of spousal relationships that exist in modern society. [104] It is clear that, when undertaking an analysis of whether persons are continuing to live in a marriage-like relationship, the court must examine the relationship as a whole and consider all the various relevant factors and criteria referred to in the authorities. The presence or absence of one particular factor will not be determinative. Every relationship is unique, such that a flexible approach ought to be applied within the context of any given relationship, in assessing whether the parties have separated. [105] I have applied our Court of Appeal's reasons in Der Woon v. Zadorozny, 2020 BCCA 95, where the Court affirms the focus of such inquiries as follows: [9] In Nearing, Fleming J. wrote: [56] Typically when the parties dispute the date of separation, the court's analysis focuses on the generally accepted characteristics of marriage including the intention to remain married, having sexual involvement, carrying on activities in public, sharing financial resources and sharing significant family events: [Sachdeva v. Sachdeva, 2013 BCSC 313] at para. 87. The court will also consider a range of other factors, including a clear statement by one of the parties of his or her desire to terminate the relationship. Sexual involvement, or lack thereof, is not conclusive: Newth v. Booth, 2011 BCSC 317 at para. 17. [10] I agree with that description of the focus of the court's analysis. The factor relied upon by the appellant, the contribution to household finances, is but one of the factors to be weighed and certainly would not overwhelm what is referred to in Nearing as the "generally accepted characteristics of marriage" which were considered by the chambers judge. As Groberman J.A., for this Court noted in Weber v. Leclerc, 2015 BCCA 492 at para. 25, "a checklist approach is not appropriate" for addressing this question and the trial judge must look to "indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship". [106] In light of the totality of the evidence, I am satisfied that the parties legally separated in February 2013 and did not resume a marriage-like relationship after that time. [107] Mr. Kumar not only lived in a separate residence after that time, he entered a child support agreement with Ms. Gupta in 2013 and has continued to pay child support to her since then. I find her evidence that she gave her child support back to Mr. Kumar unpersuasive and unproven. [108] The photographs tendered by Ms. Gupta do not, in my view, support the conclusion that the parties continued to live in a marriage-like relationship after Ms. Gupta moved out of the East Van Residence in February 2013. Rather, they depict various social and extended family events where Monishika was in the presence of both her parents, each of whom were very devoted to her. I also accept Mr. Kumar's evidence that Ms. Gupta insisted on being present at such functions. Further, I accept Mr. Kumar's evidence, and that of Ms. Lal, that after the February 2013 move out the of the East Van Residence, Ms. Gupta was accepted into, and viewed by, his extended family or social circle as "Monishika's mother" but not as his wife. [109] Although the number and location of family trips that the parties went on, after the move from the East Van Residence in February 2013, is unclear given the conflicting nature of the evidence on this point, it is clear that such trips included Ms. Lal and others beyond the immediate family, such as his sister's family. Again, I see such trips much in the same light as the events depicted in the photographs tendered by Ms. Gupta, where Ms. Gupta was accepted as part of a greater circle of family and friends as Monishika's mother, but not as Mr. Kumar's common law wife. [110] I am not persuaded that Mr. Kumar's regular visits to the Somerville Residence, as well as the first apartment that Ms. Gupta lived in after leaving the East Van Residence in 2013, reflect an intention to continue a marriage-like relationship with Ms. Gupta. Monishika was very young and the parenting time arrangements were still in flux. I accept Mr. Kumar's evidence that he wanted to spend as much time as possible with Monishika, which at that point in time meant spending time with Ms. Gupta. [111] I also accept Mr. Kumar's evidence that when Ms. Gupta moved into the basement suite of his East Van Residence at the end of 2014, this was a living arrangement that benefited Ms. Gupta financially and also secured greater access and parental time with his daughter. [112] The questions around the authenticity of the 2015 Disputed Letter Agreement are significant and I am unable to find, on a balance of probabilities, that it was a document that was drafted and signed by Mr. Kumar or Ms. Lal. I accept Mr. Kumar's explanation that in light of his religious convictions, he would not take an oath as this document prescribes. I also accept his evidence that he does not agree with the facts in the document, does not write dates as they were written in the document, and that the form of documenting the dates was one which Ms. Gupta typically used. I also accept Ms. Lal's evidence that she did not sign the document. Furthermore, the content of the 2015 Disputed Letter Agreement flies in the face of the Cohabitation Agreement. Mr. Kumar was careful to have his legal rights to the East Van Residence (and in regard to spousal support) addressed relatively early on in his relationship with Ms. Gupta. He did so through the assistance of legal counsel and arranged for the drafting and signature of a formal agreement. It would have been out of step with Mr. Kumar's approach to such legal issues to draft an informal letter against his interests, as Ms. Gupta claims he did. [113] Further, Mr. Kovacs' opinion was qualified by the poor copy of the document that was presented to him, leaving open the possibility that Mr. Kumar's signature could have been copied onto the document. [114] I find that the evidence as a whole does not support the conclusion that Mr. Kumar authored or signed the document in which he committed himself to a marriage-like relationship with Ms. Gupta after she moved out of the East Van Residence in February 2013. [115] As regards the trip to Las Vegas in 2016, I accept Mr. Kumar's evidence that it was not a romantic holiday with Ms. Gupta's but his way of spending holiday time with Monishika and acceding to his daughter's repeated requests to "go on an airplane." I accept Mr. Kumar's evidence that Ms. Gupta would not permit him to take Monishika across the border unless she was also present on the trip. It is significant in my view that shortly after returning from Las Vegas, that very month, Mr. Kumar filed an application for an order for more parenting time with Monishika and for an order that he be able to travel abroad with Monishika. [116] In the final analysis, the evidence as a whole does not support the conclusion that Mr. Kumar continued in a marriage-like relationship with Ms. Gupta after February 2013. [117] For the reasons set out above, I find the parties legally separated in February 2013, the marriage-like relationship ended at that time, and it did not resume thereafter. [118] As such, Mr. Kumar is entitled to his costs at Scale B. "MORELLATO J."