Case of Rabbi Perry Ian Cohen
(1938) Born - Montreal, Canada
(1961) Graduated from Jewish Theological Seminary - New York, NY
(1979) Rabbi, Congregation Shaar Shalom - Chomedey, Montreal, Canada
Rabbi-in-residence, United Church Congregations - Toronto, Canada
Rabbi Perry Cohen was the spiritual leader of Congregation Shaar Shalom in Chomedey, a suburb of Montreal, for five months in 1979, but was fired for sexual impropriety. He then moved on to Tornoto and served as a ''rabbi-in-residence'' at several Toronto churches. He would hold Bible study classes, psalm readings and weekend retreats, and ''brings a Judaic perspective'' to church life, says United Church spokesman Peter Wyatt. The rabbi has served as''rabbi-in-residence'' at several local United Church congregations, including Lawrence Park, Parkwoods United and the former St. George's and Eglinton United congregations. Rabbi Cohen said he had also been involved with Anglican and Catholic congregations.
There were allegations made that Rabbi Perry Cohen had sexual relations with one of his former students who was seventeen at the time. The plaintiff testifide that they had sexual intercourse "her first, after he told her not to worry about it as it would be all right because he was' a rabbi. Their affair lasted some four years during which he directly and indirectly supported her, sometimes claiming her as a dependant for income tax purposes".
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Table of Contents:
1994
- Between "Name Withheld" Plaintiff and Perry Ian Cohen, Defendant (09/24/1994)
1998
- Rabbi serving at Toronto churches [Perry Cohen] (09/03/1998)
2003
- A Sharing of Traditions; 'Rabbi in Residence' Helps Members of Trinity United Church in Kitchener Deepen Their Understanding of God (03/01/2003)
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Between "Name Withheld" Plaintiff and Perry Ian Cohen, Defendant
1994 A.C.W.S.J. LEXIS 74182, *; 1994 A.C.W.S.J. 407988, **; 50 A.C.W.S. (3d) 454
Copyright (c) 2003 Canada Law Book Inc.
[Indexed as: "Name Withheld" v. Cohen]
File No. 40537/89QOntario Court (General Division)
1994 A.C.W.S.J. LEXIS 74182; 1994 A.C.W.S.J. 407988; 50 A.C.W.S. (3d) 454
September 27, 1994, Decided
COUNSEL: Moishe Reiter, Q.C. for the plaintiff. J. Lester Davies for the defendant
JUDGES: Sutherland J.
[**1] The parties were married in a civil ceremony in Toronto on May 23, 1989, and separated in August, 1989. The marriage was a second marriage for the plaintiff and a third marriage for the defendant.
[**2] Prior to the marriage the plaintiff, then aged 43, owned a condominium (the "condominium") known municipally as 150 Farnham Avenue, Apartment 324, in the City of Toronto. The down payment for the condominium had been provided by the plaintiff's father, and the mortgage had been later paid off [*3] by virtue of an inheritance from the plaintiff's aunt. In 1989 the plaintiff lived in the condominium with her son, CHILD, then aged sixteen, who had some learning disabilities. The plaintiff also had an elder son, Mark, who graduated from a university or college in 1989. There is no evidence that Mark lived with the plaintiff in 1989.
[**3] On May 15, 1989, shortly before her marriage to him, the plaintiff conveyed to the defendant a half interest in the condominium, by way of tenancy in common, and the conveyance was duly registered in the appropriate land registration office. The land transfer tax affidavit stated that the conveyance was made as an expression of natural love and affection and in anticipation of marriage.
[**4] In this action the principal claim of the plaintiff is for an order setting aside the transfer to the defendant of a half interest in the condominium, or in the alternative for a declaration that the defendant holds any interest he may have in the condominium in trust for the plaintiff, and the plaintiff claims, in either case, an order requiring the defendant to retransfer to the plaintiff, without compensation, any interest he may hold in the condominium. [*4]
[**5] The plaintiff also claims damages for alleged assaults or trespasses upon her person. And in the alternative to her main property claim she asserts a claim against the plaintiff for his failure to carry out an alleged promise to transfer to a registered retirement savings plan ("R.R.S.P.") for her benefit the sum of approximately $ 55,000 promised to have been derived from the defendant's pension fund at, and anticipated severance pay from the defendant's former employer, Champlain College.
[**6] The plaintiff's claims for a return, one way or another, of the half interest in the condominium are based upon allegations of coercion, duress and undue influence by the defendant and in particular that he abused his status as a rabbi to learn of her emotional and psychological needs and to prey upon her weakness by dominating her will and by manipulating for his own selfish ends her desire to be converted to Judaism.
[**7] The plaintiff also asserts that the condominium and certain of its contents were held by her on an oral trust, said by her to have been known to the defendant, to hold such property in trust for her use and for the ultimate benefit of her sons.
[**8] [*5] For his part the defendant denies that he coerced or unduly influenced the plaintiff or that the conveyance in question resulted from duress. Specifically he denies ever having acted as a spiritual adviser to the plaintiff. He states that it was part of the understanding between all parties that he would give up his employment at Champlain College and would move to Toronto to marry the plaintiff and live with her at the condominium. He states that the conveyance was freely made by the plaintiff, in consideration of the marriage and his sacrifice of his employment, and at a time when she, by virtue of her employment in a confidential capacity at the then prosperous Olympia & York real estate development and holding company, had easy access to legal advice. The defendant pleads that there has been a completed gift and that by virtue of the marriage there cannot be restitution. Alternatively the defendant asserts that the conveyance was part of a marriage settlement. The defendant denies that there was a contract or "reciprocal trust obligation" to transfer assets of his into an R.R.S.P. for the plaintiff, and asserts that no such claim was pleaded and that even as later put forth the [*6] alleged agreement is oral and so void by virtue of the Statute of Frauds.
[**9] The defendant denies knowledge of any trust of property held by the plaintiff and asserts that the plaintiff has completely failed to prove the existence of any such trust.
[**10] As to the alleged assault and trespass, the defendant denies assaulting the plaintiff and submits that no corroborating evidence of the alleged events, and no evidence whatsoever as to damages, has been led by the plaintiff.
[**11] The plaintiff having taken interlocutory steps to exclude the defendant from possession of the condominium, the defendant claims entitlement to occupation rent in respect of his half interest.
[**12] The defendant also advanced, although without vigour, a claim to equalization under the Family Law Act , R.S.O. 1990 ch.F-3.
[**13] Generally speaking the defendant asserts that the conveyance was a gift or settlement freely made by the plaintiff in anticipation of the marriage and that it is a perfected gift that cannot now be disturbed. If the trial had been fought out on the defendant's issues it would have been a much shorter trial.
[**14] Central to the plaintiff's case, as presented, [*7] is the assertion that by virtue of his claimed status as a rabbi the defendant had over many years acquired confidential information as to the hopes and fears of the plaintiff and must have known that the plaintiff was a vulnerable person who had come to rely upon him for guidance, or, at the least, approval and emotional support. It is asserted that the defendant knew of the plaintiff's neediness and that he preyed upon it for his own advantage.
[**15] The plaintiff's contention that the defendant had influence over the plaintiff because he was a rabbi and that he wrongfully exercised such influence for his own selfish ends was sought to be supported by
[**16] (a)evidence of the defendant having taken advantage of other women, in misuse of his status as a rabbi, which evidence was sought to be justified as similar fact evidence but was led by plaintiff's counsel as though there were no tests to be met in that regard;
[**17] (b)evidence of the defendant having, on occasion, asserted and exercised the privileges, in Jewish religious services, of a Kohane, while departing widely in his life from the standard of conduct expected of a Kohane by the religious institutions and [*8] communities where such privileges are recognized and accorded; and
[**18] (c)evidence that when the plaintiff, desiring to be married to him and intending thereafter to take religious instruction with a view to being accepted as a convert to Judaism, and properly relying upon the defendant for guidance in that regard, came up with the name of a person licensed in Ontario to perform civil marriages who also held himself out as qualified to conduct conversion classes, the defendant took no steps to verify the status, qualifications or standing of such person and go led the plaintiff to believe that the person was a fit instructor, although in fact the person turned out not to be a rabbi or even a person well regarded by conservative, orthodox or reformed rabbis, or mainline institutions of Judaism, in Ontario.
Background:
[**19] It is common ground that the defendant, Perry Cohen, was born in 1938 and brought up in Montreal and that in 1961 he graduated as a Master of Hebrew Literature from Jewish Theological Seminary in New York, a renowned centre of learning and instruction in Judaism and Jewish history and culture. Upon such graduation he was ordained and certified as a rabbi, [*9] a status which down to the time of the trial had not been revoked. At the time of the trial he was not on any rabbinic register.
[**20] He was first married in 1960 when he was twenty-two years old, and his bride was eighteen. There was one child of that marriage, a son Ronald. That marriage ended in 1971 at or about the time when the defendant returned to Montreal and lived with his parents. His attitude toward his support obligations in respect of the son is not edifying. For at least part of the period in which he paid child support the very modest amount of it was paid by Phyllis Bailey, who in 1975 became his second wife and who was a woman of some wealth. When the first wife remarried the defendant felt absolved from the payment of any further child support. For a time after 1971 the defendant saw his son a few times a year but when the boy was thirteen or fourteen that stopped and although the defendant thereafter wrote him letters (that went unanswered) that, too, had ceased long before the trial.
[**21] The defendant was a pulpit rabbi for only two and a half of the thirty years following his ordination. Soon after his ordination he was a pulpit rabbi for two years [*10] at an institution in New York City known as the Coop City Jewish Center. While in New York he had been involved in radio and had come into contact with a wide range of Zionist and other Jewish organizations.
[**22] A few months after his return to Montreal he was hired as National Director of Public Relations for the Canadian Jewish Congress, which he described as a Jewish secular organization. He held that position for two and a half years.
[**23] In 1973 or 1974 he began living with Phyllis Bailey, a well-to-do person of Jewish ancestry who was a declared atheist. In 1974 he resigned from his job and embarked upon business ventures, or at least considered a number of business projects. He married Phyllis Bailey in 1975. He borrowed $ 100,000 from her mother, on an interest free basis and prepared to invest in real estate. He investigated several properties but made no investments. He appears to have put the $ 100,000 out at interest, which he used to help defray expenses. At some point Phyllis Bailey began supporting him so that he could devote his time to writing a novel and, later, a play. The novel was written but never published, and the play was never produced. While [*11] engaged in his writing activities the defendant had a separate office or flat in Montreal. He acknowledged that it was used in part for meetings with his girl friends.
[**24] In 1976 the defendant, while married to and being supported by, Phyllis Bailey, had a three-month affair with the plaintiff who was then living in Montreal. The plaintiff found out that her main rival for the amorous or sexual attentions of the defendant was not Phyllis Bailey but a woman identified only as Erica.
[**25] I interrupt this summary narrative to note that, with reference to the plaintiff's stated reliance upon the defendant as a rabbi and a counsellor and spiritual advisor, the plaintiff cannot have been unaware that, while married and financially dependant upon his wife, the defendant was not only having an affair with her but at the same time, and unbeknownst to her, having an affair with another woman.
[**26] The plaintiff's 1976 affair with the defendant ended after she became aware of the other affair, and when at a social gathering the defendant was rudely disparaging of one of her guests. At the trial she stated that she had by then had enough of the defendant's "shenanigans", and [*12] that she terminated the relationship because the defendant was not being honest with her. I observe that the plaintiff cannot have had an unalloyed perception of the defendant as a spiritual adviser.
[**27] The defendant's marriage to Phyllis Bailey ended in 1978.
[**28] For about five months in 1979 and 1980 the defendant was the pulpit rabbi of a small synagogue in a suburb of Montreal. He was summarily dismissed from that position, without severance pay, after it came to the attention of the directors that he had had sexual relations with the separated wife of a member of the congregation. The woman had been referred to him by her sister for counselling or guidance after her marital separation. The defendant conceded that the affair was the formal reason for his dismissal but stated that there were "underlying" reasons that he could not describe because to do so would be a breach of confidentiality. He reported his dismissal, in what detail I was not told, to an association of rabbis. He is proud of a letter written by that association to the synagogue complaining of his summary dismissal. There was no evidence of the synagogue's reply but it was made clear that the synagogue [*13] took up steps to reinstate him or to give him severance pay. That was the defendant's last reported pulpit. He testified that down to the time of the trial he had had no other pulpit - and further that he did not believe that he could get work as a pulpit rabbi.
[**29] In 1978 the defendant began work, part time, at Champlain College, a community college in a suburb of Montreal. And in 1979 he began full time work there, in the Humanities Department, and continued there on a full-time basis until his resignation in May, 1989. The defendant made much at the trial of his "sacrifice" in leaving what he referred to as "tenured" employment at Champlain College to come to Toronto to marry the plaintiff. In fact his position was less than tenured. He had been informed by letter that he was "dispensable" meaning that if there were down sizing he would be laid off. it was the defendant's evidence that there were five or six persons on the relevant academic staff that would be laid off before him and that he thought that he could have continued full-time uninterrupted for five or six years. He also stated that if he was laid off he would be paid about eighty per cent of his former salary. [*14] Thus he insists he made a real sacrifice.
[**30] During the years between the end of their affair in 1976 and the spring of 1989, the parties kept in touch with each other, almost exclusively by telephone. The defendant would call the plaintiff. According to her he comforted and consoled her, and heard all about the many problems and crises in her life, learning all about her weaknesses and needs. She insists that he, as a rabbi, gave spiritual counselling. He agrees they had long telephone conversations, initiated by him, in some years more than others, and that the conversations were mostly about "Name Withheld" and her life and problems but not notably spiritual.
[**31] The plaintiff had been twice hospitalized as the result of attempted suicides when she was fifteen or sixteen, and her uncontested evidence was that over the years prior to her marriage to the defendant she was treated by many psychiatrists and psychologists, and had problems of low self-esteem. All this she explained to the defendant in their many telephone conversations over the years 1976 to 1989.
[**32] The plaintiff led evidence from a former student of the defendant's at Champlain College who, while seventeen [*15] or eighteen became friendly with him and had sexual intercourse with him, her first, after he told her not to worry about it as it would be all right because he was' a rabbi. Their affair lasted some four years during which he directly and indirectly supported her, sometimes claiming her as a dependant for income tax purposes. This evidence was led as similar fact evidence, the principal similarity being the assertion that the defendant's rabbinic status could protect her from evil if she had sex with him. I regret that I let this evidence into the record and I propose to ignore it for the reason that it is not sufficiently distinctive or unusual to meet the test for similar fact evidence, particularly where the ages and the experience level of the student and of the plaintiff are taken into account.
[**33] As to the plaintiff, it was her uncontradicted evidence that she was a needy and suggestible person. Her father was bookish and romantic and her mother was from a dysfunctional family and required a great deal of her father's attention. She testified that it would have been better if her parents had not had a child. Her father regarded her as a flower child whose first marriage [*16] had been to an undesirable person and who was not a good parent to her own children. Yet, in 1989 she was Assistant Vice-President in the commercial leasing division of the then still burgeoning Olympia and York real estate empire. She had a staff and a confidential position seeing to the preparation of lease documents for signature by Albert Reichmann. She was in contact with numerous lawyers and I believe could easily have obtained legal advice on her personal matters. She said of her work that she was a "glorified clerk". However, she was then earning about $ 70,000 a year.
[**34] It is the plaintiff's uncontested evidence that she has always sought out strong male figures and sought to gain their approval. In this regard she named her father, her first husband, Albert Reichmann and the defendant as strong male persons.
[**35] She testified without challenge that when her parents paid the down payment on the condominium they kept the legal title to the property in their names, the reason being that they thought that she was too much of a "flower child" to be responsible for it. In 1983 her parents transferred the title to her and in 1988 the mortgage was paid off out of [*17] family money and her father gave her $ 25,000 to pay for renovation of the property. It was her belief that in 1989 the condominium was worth approximately $ 250,000.
[**36] There was uncontested evidence that she was given to buying things for people, on impulse, and tended to pick up the tab when having lunch with someone - compulsively, as though trying to curry favour or approval.
[**37] The plaintiff acknowledged that her affair with the defendant in 1976 was not her first affair with a married man, nor her last such affair. In this regard the defendant testified that the plaintiff was given to intense affairs lasting about three months. The plaintiff testified that some of her relationships had lasted much longer than three months - one in fact for five years - but that she felt that they had all ended in failure.Events Leading Up to the Marriage:
[**38] Early in 1989 the defendant called the plaintiff and, among other things, spoke of his recent soul searching and of his desire to apologize to her for not having been straight with her in the past. He said he wanted to make it up to her in a relationship that was honest.
[**39] At that time the defendant's two [*18] and a half year relationship with a Roman Catholic woman had come to an end and he had been advised that his employment at Champlain College was, at the best, not sure to continue. He was then living in a room at the home of one of his academic colleagues, and his rent or accommodation cost was one hundred dollars a month.
[**40] The plaintiff invited the defendant to come to dinner at her condominium with her children, her father and her stepmother. The occasion was to show off the renovations done to the condominium with the $ 25,000 given to her by her father for that purpose. At the dinner the defendant heard celebratory discussions of the financial position of the plaintiff and of her success in her job.
[**41] After her parents left her home the defendant expressed his admiration for how well she had "done for herself".
[**42] In one of their later telephone conversations the defendant told her that he had a birthday coming up and had no friends and was unhappy. She invited him to come to Toronto to celebrate his birthday at her home. She met his train and he approached her with what she described as "love light in his eyes". They went for a drink. He said he wanted [*19] to sleep with her. It was agreed that he would go home with her. Incidently, she expressed concern about AIDS and pregnancy but he refused to go to a drug store for prophylactics and so, despite her anxieties, they had unprotected sex.
[**43] The next morning the defendant donned orthodox rabbinical accoutrements and prayed the morning prayer. Later she joined him in studying Psalms.
[**44] According to her it seemed to be assumed that they would be together. They had a long conversation from which it emerged that the defendant felt "called" to write a book about anti-semitic influences in the Gospels, especially Matthew, as a contribution to better understanding between Jews and Christians. His desire to visit Auschwitz was also discussed. What emerged from that and later discussion was a plan or arrangement that envisaged the defendant quitting his job and coming to Toronto to marry the plaintiff in a civil ceremony that would later be confirmed in a Jewish religious marriage ceremony after the plaintiff had taken the steps to qualify for conversion to Orthodox or Conservative Judaism and after such conversion.
[**45] The plan appears to have been that the plaintiff would [*20] continue working at her job to provide support for their life together while the defendant would live the life of a Jewish intellectual and contemplative and would work upon his proposed book, using the word processor in the condominium. It was part of the understanding that the defendant would visit Auschwitz, essentially at the expense of the plaintiff. It was part of the plan that the parties would share their property equally. I believe the plaintiff's testimony to the effect that the defendant told her that one of the troubles in his marriage to Phyllis Bailey was their great disparity in wealth. I also believe the plaintiff's testimony to the effect that the defendant told her that Jewish religious law encouraged equal sharing between spouses.
[**46] Although he had been a teacher for the preceding ten years there was no evidence of any scholarly publications by the defendant. In the six-week period prior to the marriage the defendant did not discuss his proposed book with her in any detail or show her an outline or any research notes beyond a few pages. The plaintiff acknowledged that she did not know anything much about the courses taught by the defendant at Champlain College. [*21]
[**47] The plaintiff did not want to transfer a half interest in the condominium to the defendant; partly that was because she was fearful about how her father would react to such a transfer. The defendant insisted upon the transfer.
[**48] He and the plaintiff and her son, CHILD, drove to Ottawa to be with the defendant's sister's family at Passover. The question of the transfer came up, in CHILD's presence, with the plaintiff expressing her objections. It was testified by the plaintiff that the subject came up again on the return road trip from Ottawa. The defendant was driving and she and CHILD were passengers. when she did not agree to the property transfer the defendant began driving very dangerously, until she agreed to the transfer. CHILD, of course, was in a position to hear the conversation and to experience the driving. CHILD was not called as a witness. The defendant denies that he drove wildly to get the plaintiff to agree, but I do not believe him. If the transfer had been signed and handed over in the car, I would say that there had been duress or coercion and that the transfer could be avoided at the instance of the plaintiff - if she had acted promptly to repudiate [*22] the transfer after she ceased to be in a situation of duress. As it was, many days went by before the transfer was signed. on most of those days the defendant went to work where she had access to legal advice and help.
[**49] The car episode, although I accept that it happened, does not of itself mean that the transfer was signed under duress. The fear that the plaintiff may have felt for her safety and the safety of her son during part of the car trip from Ottawa cannot be seen as carrying forward, as duress, to the time of her signing of the transfer.
[**50] In their conversations about marriage it was the plaintiff who first suggested that she should convert to Judaism. She wanted to please him and to participate in the spiritual life that he held out as possible for her and as the way out of her self-doubts. The plaintiff admits that she suggested it but there is something distinctly niggardly about the way that the defendant at trial professed indifference as to whether she converted or not. That position is inconsistent with his expressed desire to participate in the intellectual and religious life of the Toronto Jewish community. It is also inconsistent with his insistence [*23] that material equality was part of Jewish religious law and his insistence, at least initially, that the conversion be to Orthodox or Conservative Judaism.
[**51] Perry Cohen seems to have remembered, and to have begrudged, every dime that he spent on, or because of, "Name Withheld". He is fearful of anything that might impose a reciprocal obligation upon him and so is not even prepared to acknowledge that he welcomed the plaintiff's desire to convert to Judaism or to acknowledge that she made the suggestion for his sake and to further their lives together. To the extent that he belittles her gesture with regard to her conversion he casts doubt upon the legitimacy of his expressed plans to lead a spiritual life with her and the life of a Jewish intellectual and contemplative, grandiose and portentous as those plans may have been.
[**52] The defendant wanted them to have a marriage contract, which in his view of it was to have provided for an equal sharing of the property of each of them. The plaintiff arranged for a consultation with Toronto lawyer CHILD Hynes. The defendant participated by way of a long distance call, under an arrangement where the three could hear everything [*24] that was said. According to the plaintiff, whose evidence in this regard I accept, Mr. Hynes, wanting to protect her interests, advised that the parties should have a marriage contract, presumably by guarding against the equalization provisions of the Family Law Act , supra . The defendant was not in favour of the sort of contract suggested by Hynes.
[**53] About a week before the marriage, when the parties were to pick up their marriage licence, the defendant caused a scene at the Sheraton Mall, loudly demanding that the plaintiff transfer half the condominium to him and threatening not to go through with the marriage. Again, the plaintiff said that she would make the transfer.
[**54] Shortly thereafter the plaintiff, in her office and copying a precedent that she found there, and with the defendant standing over her, had her secretary complete a form of transfer. When it was typed the defendant took it down the hall to a lawyer suggested by the plaintiff to have it checked over. Apparently that lawyer found the document satisfactory, because its execution was then completed. The parties then attended at the appropriate land registration office and registered the transfer. [*25]
[**55] The defendant's responses to questions about the execution of the transfer and the steps leading up to it are not credible, to an extent that damages his credibility generally. He professes to have little recall of the details, including the steps involved in the preparation, checking and signature of the transfer document. He denies that he caused a scene at the Sheraton Mall. At one point he went so far as to infer that there must have been some discussion of the transfer because obviously a transfer was executed and registered. He would have me believe that he was unaware of the reluctance and misgivings that the plaintiff felt about the transfer. I do not believe him.
[**56] Before the marriage the parties attended, without appointment, at an office of Jane Harvey and Associates, lawyers, and spoke to a person that they believed was an articled law student. They asked about a marriage contract, of the kind desired by the defendant, but the person was unable or unwilling to do one within the time constraints mentioned. They then gave instructions for reciprocal wills, referred to by them as mutual wills. The wills were prepared in separate documents. Each revoked [*26] prior wills and stated that on the death of the testator the bulk of the estate was to go to the other if the other survived the testator for thirty days. Each will provided that if the other did not survive the testator for thirty days the estates were to go, as to ten per cent, to the defendant's son, Ronald, and as to the balance, equally between the two children of the plaintiff.
[**57] I find that it was the understanding of the parties that, as part of the property arrangements between them the defendant was to have placed his Champlain College severance pay and his Champlain College pension entitlement into an R.R.S.P. belonging to the plaintiff.
[**58] The plaintiff testified, repeatedly, that she was compelled to execute the transfer because of the huge influence that the defendant had over her. She dwelt upon his status as a rabbi, his role in advising and comforting her in their long telephone conversations over many years, his knowledge of her weaknesses and of intimate details of her past and of her hopes, his dominant and forceful personality and his promises that he could fill the spiritual void in her life and accompany her in the attainment of a happy and fulfilled [*27] life. She also repeated often that she feared him.
[**59] It is clear from her own evidence that his main threat was that unless he got his own way he would abandon her. He did threaten that. She did fear that. And she did the transfer to prevent him from backing out of the marriage and leaving her.
[**60] The questions relating to the property were discussed by the parties for weeks. The plaintiff had plenty of time in which to consider what she was asked to do and whether she wanted to do it. She had had legal advice from CHILD Hynes. She has admitted that she knew exactly what she was doing. She chose not to follow the advice of CHILD Hynes. That she was conscious of the import of his advice is shown by her statement at trial which I quoted, or paraphrased, in my bench book as follows:
If CHILD Hynes had known that I was contemplating the transfer he would have had me committed.
[**61] She admitted that she was, although reluctantly, agreeable to the transfer. She admitted that she knew many lawyers in downtown Toronto. Her position at Olympia & York was such as to make many of them likely, in their own interests, to want to do her a favour.
[**62] She insists that [*28] she was dominated by the defendant and that she feared him. Yet it is clear that her principal fear was that he would abandon her. He had made plans for a marriage or a marriage celebration at the Royal York Hotel. She disapproved and either cancelled those plans or caused him to cancel them. This tends to show that she was not under his thumb.
[**63] She was not dependent upon him financially. She has acknowledged that she was not suffering from any mental or physical infirmity. She was not on any medication at the time. No one had suggested to her in this period that she should take sick leave. If she had wanted to escape from the defendant's presence she could have done so; there were people in Toronto who would have sheltered her.
[**64] Although she came to view matters very differently after the marriage, it is clear on the authorities that the relevant time as of which to gauge her intentions is the time of the gift. See in this regard the decision of our Court of Appeal in Berdette v. Berdette (1991), 3 O.R. (3d) 513, esp. at p.518, and see also Majer v. Majer (1977), 4 R.F.L. (2d) 383.
[**65] After the fact, she insists that the defendant had made her promise [*29] not to tell anyone of the intended conveyance to him. She asserts that she feared him and looked up to him as a rabbi. But when pressed she acknowledged that her real fear was that he would abandon her. In the circumstances that means that she feared that he would not marry her and would withdraw from her life. She would not, at the worst, be abandoned on a mountain top or a desert island or in a foreign country nor in financial jeopardy nor, like the wife in Hyldtoft v. Hyldtoft (Released June 18, 1991, by R. J. Haines J. of this Court), with all her capital tied up and at real risk in a small business that she did not know how to operate. The plaintiff's main fear was that the defendant would leave her.
[**66] I shall return to this aspect of the matter after considering the aspects of the plaintiff's case that relate to the plaintiff's intended conversion to Judaism and the defendant's alleged role and obligations as a rabbi or sometime rabbi.The Religious Aspects:
[**67] I have stated that the parties intended to be married, as they were, in a civil ceremony and that the Plaintiff would later take instruction and try to be accepted as a convert to Judaism, after which [*30] the marriage would be confirmed or consecrated in an Orthodox or Conservative Jewish religious ceremony.
[**68] In addition to assertions that the defendant was able to dominate the will of the plaintiff because he was a rabbi there was led on behalf of the plaintiff evidence of two interrelated aspects of the religious dimension to the intended union of the parties. The first aspect entailed the leading of evidence from two high status rabbis as to Jewish religious law and how it would regard various actions of the defendant and what his obligations were as a rabbi, as a Kohane and as a devout Jew. The second aspect of the religious dimension involved the status in the mainstream Jewish religious communities of Paul Sheldon, the person who officiated at the (civil) marriage of the parties and purported to give religious instruction to the plaintiff, with the view to her conversion.
[**69] With regard to the first aspect the apparent intention of counsel for the plaintiff was to establish that the defendant was a bad Jew in that his conduct over much of his life fell well below the standard that Judaism requires of a rabbi or of a Kohane, let alone of an ordinary member of a [*31] synagogue. With regard to Paul Sheldon, plaintiff's counsel was at pains to establish that although he frequently applied the term "rabbi" to himself Sheldon was not a rabbi in the view of any of the mainline institutions of Judaism. For these assertions to be relevant it was incumbent upon counsel for the plaintiff to tie the shortcomings of the defendant in the eyes of Jewish religious law and the falsity of the status claims of Paul Sheldon back to the issue of undue influence. The thesis put forward was that the defendant's manipulative use of his status as a rabbi and his unquestioning acceptance of the bogus qualifications of Paul Sheldon as an instructor for someone wishing to convert to Conservative or Orthodox Judaism (or Reform Judaism if that had been desired in this case) shows that the defendant was insincere and manipulative and was cynically exercising undue influence over the plaintiff, all with a view to making her share her property with him.
[**70] The task of showing the relevance of this evidence was not an easy one, nor was it achieved to any significant degree. At times it appeared that counsel for the plaintiff had a secondary agenda according to which he [*32] would show how much more he knew about Jewish religious law than the defendant did and according to which he would establish the disdain that Jewish religious leaders felt for Paul Sheldon as a person who, although lacking the status to do so in a manner acceptable to them, would purport to supervise conversions to Judaism that were quick and easy (and sometimes referred to disdainfully as a "Five Dollar Dunk") . This aspect of the plaintiff's case seems to have taken on a life of its own.
[**71] I recall with pleasure hearing the testimony of Rabbi Joseph Benjamin Friedberg, Rabbi of Beth Tzedic Synagogue in Toronto, a leading, if not the leading, Conservative synagogue in Canada. He explained that Jewish religious law applies to all Jews equally but that a rabbi is expected to be exemplary in his adherence to the law. He explained further that the surname Cohen often means that the person is a Kohane, i.e., a member of a priestly family, and as such a person to whom stricter rules apply, including the rule that a Kohane is not supposed to marry a person who has been divorced.
[**72] Rabbi Friedberg stated that, by and large, Conservative and Orthodox groups had the same approach [*33] to conversions. I formed the impression that both groups are concerned not to allow ill-considered, shallow or insincere conversions - and want to be sure that the proposed convert has had a rigorous course of study and a number of opportunities to reconsider the decision to convert. He said that the process usually takes a year and involves classes once a week for two to two and a half hours, in Jewish history and values, rituals and prayer. A candidate is expected to attend synagogue once a week during the process. He further stated that if a proposed convert came to him to say that he or she wanted to join his congregation and said that he or she was taking conversion classes from a person not known to him, he would be under an obligation to check out the education, training and status of the proposed teacher. Further, each proposed convert should have a sponsoring rabbi who would meet with the candidate every month or so to monitor the progress of the candidate, to help solve any problems the candidate was having and to check on the candidate's intentions and continuing sincerity. A conversion purported to be carried out by a person not having the required qualifications and status [*34] would not be accepted, even if the candidate had been wholly sincere.
[**73] Rabbi Friedberg made it clear that the rabbinate is not, as he said it, a secret service. Anyone wishing to know the status of a particular rabbi has only to contact the local rabbinic organization. There are two such organizations in Toronto, with telephone numbers listed in the directory.
[**74] According to Rabbi Friedberg, Paul Sheldon is not recognized as a rabbi by either of the rabbinic organizations in Toronto. A conversion purported to be carried out by him would not be recognized - and the children of the marriage of such a purported conversion would not be regarded as Jews.
[**75] As to the use of the term "rabbi", it was the opinion of Rabbi Friedberg that a person who is ordained at a proper seminary would have the title rabbi but should not use it unless he is a pulpit rabbi or a teacher at a Jewish educational institution or otherwise engaged full- time in Jewish religious work.
[**76] One scarcely needed a person of Rabbi Friedberg's status to be aware that Judaism does not look kindly upon sex outside of marriage or that it considers sexual threesomes an abomination or that group [*35] sex is harlotry or fornication. He went on, however, to say that a Kohane who had married a divorced woman would be an inappropriate person to sponsor a would-be convert. Moreover, he stated that a rabbi who assumes a position as a teacher is not permitted to take advantage of a woman who has sought guidance.
[**77] If a rabbi purported to marry a Jew and a gentile on certain prohibited days, the marriage would not be recognized by a Conservative synagogue, and a purported conversion supervised by such a purported rabbi would similarly not be recognized.
[**78] Evidence was also given by Rabbi Wayne Allen, Treasurer of the Toronto Board of Rabbis. He expressed his agreement with the salient parts of the views expressed by Rabbi Friedberg.
[**79] He testified that he knew of no rabbi or synagogue that would recognize Paul Sheldon as a rabbi who could conduct a marriage or a conversion.
[**80] Rabbi Allen stated that he would find it difficult to participate in a Christian liturgical service.
[**81] He stated that, to his regret, demographic studies show that in the United States thirty to forty per cent of Jews marry non-Jews. The comparable figures for Canada were stated [*36] by him to be about sixteen per cent.
[**82] Of importance here, given the hopes expressed by the plaintiff, is the opinion of Rabbi Allen that in an Orthodox congregation conversion after marriage is not available. When an Orthodox Jew marries a non-Jew he or she may continue to belong to a synagogue but as a single person, with the spouse not being a member.
[**83] Rabbi Allen further testified that a Kohane who breaks the rules applicable to Kohanes loses the privileges accorded to Kohanes.
[**84] With regard to the contact of the parties with Paul Sheldon it is clear from the evidence that he was found, or first contacted, by the plaintiff, not the defendant. The parties were planning a civil marriage and the defendant told the plaintiff to see if she could arrange for a Justice of the Peace to marry them. None of the persons who perform civil marriages in Toronto were available because there was a large backlog. The Plaintiff went to a municipal office in the City of North York and was given a list of persons recognized there as able and willing to perform civil marriages. She picked Paul Sheldon because she thought that his name was Jewish. When she made a telephone [*37] call to him he answered as "Rabbi Sheldon". When they were next together the plaintiff explained to the defendant that she had found a rabbi who would officiate at their civil marriage. The defendant met Sheldon and apparently found him acceptable.
[**85] With respect to her proposed conversion the plaintiff had a discussion with a Conservative rabbi who reportedly explained that the process of conversion would take about one year. Neither of the parties wanted a process that would take that long. The matter was discussed with Paul Sheldon and it was arranged that the plaintiff would take conversion instructions from him. What was planned was a modest reading course and a series of eleven instructional sessions, to be followed by conversion. Apparently nothing was said about the need for a sponsoring rabbi, and it was not made clear whether the plaintiff was told that she must attend a synagogue regularly during the instruction period. The plaintiff claims to have relied in this matter upon the guidance of the defendant, a not unreasonable position. However, it must be remembered that a Conservative rabbi had told her that the conversion process would take a year. She cannot deny [*38] that she had that information. Moreover, she found in a publication on Jewish marriage law the statement that a Kohane was not supposed to marry a divorced woman. She questioned the defendant about that and was told by him that he loved her and that she should not concern herself about what she had read.
[**86] According to the plaintiff the defendant approved of Paul Sheldon and was pleased that with him the conversion process would be a relatively quick one. The plaintiff testified that for some of her instruction by Sheldon the defendant was present. It is clear that the defendant, although generally he assumed a mentor, or at least a dominant, role in religious matters where the plaintiff was concerned, took no steps to check the rabbinic status of Paul Sheldon. He stated at trial that he believed Sheldon to be a rabbi.
[**87] The defendant sought to minimize his responsibility with respect to the conversion. He stated, without contradiction, that the idea for the conversion came from the plaintiff and that it was she who found Paul Sheldon. He denied playing the role of a sponsoring rabbi with regard to the plaintiff's proposed conversion. At one point in the trial he stated [*39] that given the lives that he and the plaintiff had led perhaps a Paul Sheldon conversion was about the best that was available to them. That remark was made long after the event and does not necessarily reflect the beliefs of the defendant at the time. As he attempted to distance himself from the conversion process the defendant's position came into conflict with his earlier expressed desires for a spiritual union with the plaintiff and for a life in which they would participate in the Jewish intellectual and religious life of Toronto.
[**88] Although counsel for the plaintiff has sought to diabolize the defendant - and clearly there is much about his life that is not exemplary - there is a real possibility that there was a delusional aspect to the defendant's stated expectations that the couple could lead a spiritual life, in a Jewish context or otherwise.
[**89] The defendant, on the evidence, was not much involved with Jewish religious institutions. He stated repeatedly that his heart was in a priory or Christian retreat house in Weston, Vermont. He described his Champlain College course on morals as "a sharing of Christianity with Christians". He repeatedly said that he [*40] was trying to make better Christians of his Christian students. It is clear that he sometimes appeared as the "Jewish presence" on panels at ecumenical meetings with Christians. Although invited by the organizers he appears to have been self-appointed as a spokesman for Jewry or Judaism.
[**90] The ceremony of the civil marriage performed by Paul Sheldon had elements of a Jewish religious marriage service but omitted many important parts of such a service and was performed on a date that made the ceremony an insult to the religious sensibilities and traditions of Conservative, to say nothing of Orthodox, Jews.
[**91] The way in which the defendant answered questions on his cross-examination at trial and on his examination for discovery disclosed a person whose thought lacked vigour and often involved billowy motherhood nostrums of a vague, and self-indulgent sort. He seemed to have written his own ticket for too long, and to be suffering the consequences. At a very simple level I note that when others would have used the term "money" he often used the portentous and usually inappropriate term "cash flow". It is not surprising that he has not proceeded with or taken any significant [*41] steps with respect to the writing of the book that was said by him to be his "calling" when he was planning to come to Toronto to live with, and be supported by, the plaintiff. With his background there is something portentous, and yet something poignant, about his expressed desire to live the life of Jewish intellectual and contemplative. By the time of the trial he had not found, or perhaps sought, work. He was on Unemployment Insurance for some 51 weeks, and then had it extended. The evidence was that no work was done on his book in that time.
[**92] The defendant acknowledged that his life had not been exemplary - but reminded me that he had been charged with no breaches of the Criminal Code. It was submitted that the standards to which the plaintiff's counsel sought to hold him had little relevance to the issue as to ownership of a half interest in the condominium.
After the Marriage:
[**93] The relationship was not long in going sour. The honeymoon involved a trip to what the plaintiff described as a seedy motel in Vermont. The plaintiff testified that the defendant had obviously been there before with other women and that a member of the staff expressed surprise that [*42] she was married to the defendant.
[**94] The plaintiff continued working at her job. The defendant moved to Toronto. The conversion instructions proceeded for a time with Paul Sheldon. Once when the parties had a rabbi and his wife for dinner it came out in the conversation that it was Paul Sheldon who had performed their marriage, and the rabbi expressed disdain for Sheldon.
[**95] The defendant did not get on with the plaintiff's son, CHILD.
[**96] The couple became short of money and the plaintiff expressed the desire that the plaintiff get a paying job.
[**97] According to the plaintiff the defendant's sexual demands changed after the marriage ceremony, in ways unpleasant for her.
[**98] The plaintiff asked the defendant to re-convey to her the half interest in the condominium. Soon after that the defendant left, asserting that he had been driven out. The defendant's brother, a Quebec lawyer, sought to have the couple reconcile but the defendant would not agree to the plaintiff's terms, which included the return of the condominium interest and that the defendant get a paying job. The latter demand was clearly different from the plans made by the couple when they [*43] got together.
[**99] The plaintiff testified that after the marriage the defendant was jealous and even accused her of "sexualizing" with her son, CHILD, when she touched him. She also testified that the defendant had taken to hanging around in a coffee shop in the building where her office was situate.
[**100] With all the foregoing as background, I turn to issues.
No Duress:
[**101] I have already stated my conclusion that, given the time span involved and the fact that the plaintiff could clearly get out of the clutches of the defendant and had, on any working day, access to lawyers and was not financially dependent upon the defendant or under any physical disability, the plaintiff's transfer to the defendant of a half interest in the condominium cannot, in law, be said to have been brought about by duress and so on that ground to be voidable.
[**102] In Berdette v. Berdette , supra , at pp.20-1, Galligan J.A. quotes with approval the statement of Finlayson J.A., speaking for the majority in Stott v. Merit Investment Corp. (1988), 63 O.R. (2d) 585 (O.C.A.) where, at pp.561-2 the latter stated that in order for pressure to amount to duress [*44] it must be a "coercion of the will" or it must place the person to whom pressure is directed in such a position as to have no "realistic alternative" but to submit to it.
[**103] I respectfully agree with and adopt that test, which I believe that I am in any event bound to apply. It is for the person alleging duress to prove it: Mackenzie v. Royal Bank of Canada , [1934] A.C. 468.
[**104] On the facts of this case the plaintiff has not satisfied the onus of proving duress on a balance of probabilities.
No Trust:
[**105] The plaintiff has asserted that she held the condominium on a trust to retain it as a home for her children. It is true that most of the money for the purchase and the renovation of the condominium came from the plaintiff's family and it is probable that the donors intended to benefit not only the plaintiff but also her children.
[**106] However, the conveyance made to the plaintiff in 1983 was to the plaintiff herself, and the plaintiff did not execute any declaration of trust. There is no writing purporting to raise a trust. The plaintiff's father was not called as a witness, nor was anyone else, to say that the condominium was held in trust. The financial [*45] statement filed by the plaintiff in connection with this litigation makes no reference to any such trust.
[**107] The plaintiff obviously now feels that she has jeopardized the financial security of her children and that she has disappointed the hopes and reasonable expectations of her father, but that does not raise a trust. Until 1983 the plaintiff's parents kept the title to the condominium in their own names, reportedly because of concerns that the plaintiff was not sufficiently mature and responsible to have title, but in 1983 they conveyed the property to the plaintiff without reservation and without any express trust.
[**108] I find that the property was taken outright by the plaintiff and was not subject to any trust prior to the time of the conveyance to the defendant.
Undue Influence:
[**109] The conveyance was made by the plaintiff with knowledge of its effect. The conveyance was completed and duly registered and the defendant was aware of the transfer. The conveyance would stand as a completed gift, or as part of an arrangement between the parties, unless the plaintiff can show that the gift or conveyance was made as a result of undue influence brought to bear [*46] by the defendant.
[**110] It is not enough for the plaintiff to show that the defendant was the dominant one in their relationship: Berdette v. Berdette , supra , at pp.520-1, where Galligan J.A. stated as follows:Even though the trial judge was not called upon to consider the contention of undue influence and duress, he did give his impression of the relationship between these spouses. He said [pp.413-14 O.R., p. 400 R.F.L.1:After observing both parties and listening to their evidence, it was clear to me that Mr. Berdette was the dominant partner in the relationship and, on most occasions before and after the marriage, Mrs. Berdette accepted without protest Mr. Berdette's decision in order to continue the relationship.The evidence of the appellant reveals that she was quite anxious to please her husband and agreed to many of his wishes, albeit reluctantly, in the hope that by doing so her marriage would be preserved. However, her evidence also shows that on occasion she acted as she saw fit notwithstanding her husband's advice or suggestion to the contrary. While the respondent was "the dominant partner in the relationship", the evidence falls short of showing that he [*47] had that "power" over her which would be necessary to find undue influence.
[**111] In Berdette , supra , Galligan J.A. speaking for the Court of Appeal expressly adopted, at p. 520, the definition of undue influence found in the judgment of Henry J. in Brooks v. Alker (1975), 9 O.R. (2d) 409, 22 R.P.L. 260 at p. 416, O.R. p. 266 R.F.L. where undue influence was defined as:
... the unconscientious use by one person of power possessed by him over another person in order to induce the other to [do something].
[**112] At p. 416 O.R. of his judgment in Alker , supra , Henry J. went on to state:
It is my understanding that duress falling short of the common law requirements may also constitute undue influence in equity.
[**113] Also in the last mentioned report, at p. 420, Henry J. sneaking of the factor of independent legal advice stated:The need and importance of independent legal advice depend in equity on the facts of each case. In all such cases the test is whether in the circum- stances, the party executed the document not really understanding the effect but as a result of full, free and informed thought about it: Zamet et al. v Hyman [*48] et al., [1961] 1 W.L.R. 1442 per Lord Evershed at p. 1444.
[**114] As stated above, there is no doubt that the plaintiff knew what she was doing when she executed, delivered and registered the conveyance. The remaining issue is whether she has proved that in so doing she was acting as a result of "full ... thought about it" or whether she was in the "power" of the defendant.
[**115] The plaintiff cites on the issue of undue influence the well- known decision in Allcard v. Skinner (1887), 367 Ch. D. 145 (which report includes both the trial judgment of Kekewich J. and, starting at p. 169, the reasons for judgment of the Court of Appeal). That, on its facts, is a very different case from this one. There, a young woman entered a convent or religious sisterhood which had very strict rules including a rule of obedience that required a sister to regard the voice of the Superior as the voice of God, a rule that without the consent of the Superior, no sister was to write or speak to externs (i.e. non-members) about anything that happened in the convent, and a rule that no sister was to seek the advice of any externs (on any matter) without the leave of [*49] the Superior. Moreover, the sisters took vows of poverty, and were strongly encouraged to give their property to the sisterhood. Failing that they were to give their property to their relations or to the poor. The plaintiff in that case joined the sisterhood when in her late twenties. She had significant inheritances and, successively as they came to her, she gave all of them to the sisterhood, retaining only rights to income from a fund on which she had no claims on the capital. it is my understanding, that as the income from the fund came to her, it too was given to the sisterhood. The trial judge and all three judges of the Court of Appeal found that the gifts were the result of undue influence but the trial judge and the majority in the Court of Appeal held that the plaintiff must, nonetheless, fail because, for too long after she had left the convent and was no longer subject to undue influence she did nothing to recover her property that was still in segregated and identifiable form. But for her acquiescence, equity would have allowed her to avoid the gifts, as to segregated and identifiable property, on the basis that when she made the gifts she was subject to undue influence. [*50] A factor stressed by the Court of Appeal was the rule prohibiting the plaintiff from obtaining the advice of externs. The plaintiff was said by Lindley L.J. to have been "absolutely in the power of the lady Superior and Mr Nihill", (the latter being the treasurer of the sisterhood). At p. 183 Lindley L.J. stated:The undue influence which Courts of Equity endeavour to defeat is the undue influence of one person over another; not the influence of an enthusiast who is carried away by it, unless indeed such enthusiasm is itself the result of external undue influence. But the influence of one mind over another is very subtle, and of all influences religious influence is the most dangerous and the most powerful and to counteract it Courts of Equity have gone very far.
[**116] It was further noted in Allcard , supra , that there were no suggestions that the Superior or Mr. Nihill had misappropriated any of the property, for their personal uses, or that they had committed other improprieties.
[**117] In Allcard , supra , the donor was effectually cut off from the world and subject to very strong institutional pressures and expectations. She had regarded herself as sworn and bound [*51] to comply with the rules of the sisterhood. Living apart from all outsiders (externs), she was expressly prohibited from consulting an extern without the permission of the Superior. That is, if only on the matter of freedom to obtain independent advice, a very different case from this one. In Allcard , supra , the plaintiff was effectively cut off from all external advice. In this case, although the plaintiff asserts that the defendant prohibited her from discussing the proposed transfer with anyone, there can be no denial by her that there were many times during her ordinary working days when she could have obtained legal advice. Indeed the evidence is clear that she was quite aware of what CHILD Hynes' advice would have been had she consulted him about the proposed transfer. She had access to legal advice and she had a clear understanding that CHILD Hynes would have strongly advised against the transfer.
[**118] That moves us on to the question of whether the plaintiff was so much in the "power" or thrall of the defendant as to have been unable to inform CHILD Hynes, or any of the other quite available lawyers, of her planned conveyance, or unable, no matter what their advice, [*52] to have kept herself from carrying out the conveyance. A subsidiary question is whether the influence of the defendant could properly be characterized as religious within the meaning of that term as discussed in Allcard , supra
.[**119] To deal with the subsidiary question first, there were marked differences between the positions and attitudes of the respective donors. In Allcard , supra , at the material times the donor had committed her whole life to the sisterhood and was sincerely committed to living according to its rules. There was nothing to suggest, nor was it doubted by the trial judge or any of the appellate judges, that her commitment was sincere and of a sort that would be correctly regarded as religious. By contrast our plaintiff sought conversion primarily to please, and probably to help to hold, her intended husband. That is not to say that she had any aversion to Judaism. Indeed it appears that what she knew of Judaism and Jewish life she found attractive. I do not believe that she was being hypocritical in her desire for conversion. However, the main attraction was not Judaism but the defendant and a significant element in that attraction was sexual.
[**120] [*53] For his part the defendant was not truly a religious figure in the sense discussed in Allcard , supra . The plaintiff has acknowledged that the defendant was an "outsider" in the Jewish community. That alone would not make him not religious, because it is possible to have an outsider who is an outsider because he is a higher fellow than most or an ideological or theological deviant wholly committed to his cause. But on the evidence the plaintiff could not possibly have regarded the defendant as such a person. Long before he first contacted her in 1989 she herself had had an affair with him while she knew that he was married, and she learned to her anger that he was simultaneously having an affair with "Erica". She referred to his behaviour then as "shenanigans", and testified that she broke off that affair because he was not honest with her. She knew before 1989 that the defendant had been married to an atheist.
[**121] It is not necessary to show that the plaintiff was aware of the self-indulgent, self-centred, self-forgiving aspects of the defendant's thoughts or of the absence of either strenuous exercises of self-determination or the rigours of submission to an exacting discipline, [*54] as a means of allowing spiritual development, or, that compared to such rigours, the defendant's thought seemed to run to honorific generalizations, vague sentiments, and large doses of "pop" psychology, in which feelings of guilt are to be assiduously avoided even if at the Cost Of Jettisoning feelings of shame, as though that could be done without lowering standards to the point that they vanish. It is sufficient for our enquiry as to the religious variant of undue influence to find, as I do, that the plaintiff knew very little about the defendant's religious beliefs and almost nothing of the courses he taught at Champlain College. She must also have known that he had not for many years been a pulpit rabbi. She did, however, know a good deal about his past and her own religious upbringing, and her subsequent involvement, as an Anglican would have given her a basis for understanding that significant parts of that past were not in accord with the basic teachings of Judaism. In my opinion there was not present in any material degree that specifically religious form of undue influence that was discussed and found to exist in Allcard , supra .
[**122] The defendant was not in a [*55] relationship with the plaintiff of the sort, such as parent and child , solicitor and client, or priest and penitent, where, in the event of a gift to the party deemed to be stronger, undue influence will be presumed and the gift will be set aside unless the presumption is rebutted. Here it is for the plaintiff to prove undue influence, on a balance of probabilities.
[**123] In support of his position counsel for the plaintiff also cited Hyldtoft v. Hyldtoft , supra , but I have already stated above in relation to duress, that the facts in this case are materially different from the facts in Hyldtoft , supra , in that our plaintiff was not financially dependent upon the defendant. In Hyldtoft , supra , the donor wife had a reasonable fear that if her husband left she would lose all her capital as it was tied up in a risky business that she did not know how to operate.
[**124] No presumption of undue influence arises from the defendant's position as a person entitled to be called a rabbi or from any role played, or played at, by him. The onus thus remains on the plaintiff to prove undue influence on a balance of probabilities.
[**125] At law, as opposed to equity, the [*56] transfer has the earmarks of a valid gift. The issue is thus whether equity will intervene to override the strictly legal effect of the transfer.
[**126] In this regard the decision of Henry J. in Brooks v. Alker (1975), 9 O.R. (2d) 409 is relevant because it deals, among other things, with the meaning of undue influence of one spouse upon another, and because its test was adopted by our Court of Appeal in Berdette , supra . There, it was alleged by a wife that her husband had exerted undue influence to make the wife sign and deliver an agreement to sell real property owned by the two of them. The action was brought by the purchasers for specific performance. Henry J. held that there was no presumption of undue influence arising from the relationship of man and wife and that the evidence did not establish that the husband had exerted undue influence on his wife in connection with her execution and delivery of the agreement of purchase and sale. Henry J. emphasized the availability of independent legal advice to the wife.
[**127] There, as here, the wife was held to have understood the nature and effect of the document, and so the issue became [*57] that with which we are now concerned, i.e., the issue of the freedom of the wife to execute or not to execute the agreement, or whether in signing she was in the "power" of her husband, who clearly was pressuring her to sign. There was a mortgage on the property and it was soon coming due. The husband threatened that he would not join in obtaining the necessary renewal or replacement of the mortgage. At p. 423 Henry J. stated his finding that the husband did not hold "a dominant position over the mind of his wife" and that his conduct with respect to the mortgage did not amount to undue influence. At p. 424 Henry J. stated: I hold that she was of a free and independent mind, within the meaning of the tests in Zamet v. Hyman , supra ; Mackenzie v. Royal Bank of Canada , supra ; Bank of Montreal v Stuart , supra .
[**128] In Mackenzie v. Royal Bank , supra , the following appears at p. 475 (and is part of an excerpt set forth by Henry J. at p. 419 of Brooks v. Alker , supra ): The plaintiff obviously possessed and exercised a will of her own. She was able generally to appreciate business conditions and it is impossible to draw the inference that in the transactions in [*58] question her will was overborne by the stronger will of her husband.
[**129] I repeat that the relevant time is the time of the transfer of the half interest in the condominium. The plaintiff has acknowledged that most of the evidence relating to the details of her intended conversion relates to a time after the transfer and so is not relevant to the transfer.
[**130] I find that on all of the evidence, as discussed above, that the transfer was not made as a result of undue influence brought to bear upon the plaintiff by the defendant. He was certainly insistent. But she willing of her own will, albeit reluctantly, to make the transfer. She therefore made a valid gift.
[**131] The plaintiff has not met on a balance of probabilities, the tests referred to in Brooks v. Alker , supra , and adopted by the Court of Appeal in Berdette , supra .Valid Gift
[**132] The plaintiff, knowing what she was doing, transferred a half interest in the condominium to the defendant in contemplation of their marriage and - to put the case at its highest - because she feared that if she did not make the transfer he would not marry her and would leave. Upon the registration there was a [*59] completed gift inter vivos . In Brown v. Davy (1889), 18 O.R. 559 the following brief statement of the law in this regard appears at p. 562:Where there is a completed gift inter vivos it becomes irrevocable.
[**133] See also in this regard the decision of our Court of Appeal in Cowan v. Cowan (1988), 13 R.F.L. (3d) 381, to the same effect. And in Berdette , supra , the following statement of the law appears at p. 520:Ontario cases are consistent in holding that in the absence of the retention of our express right of revocation, once a valid gift is made it cannot be revoked or retracted: see e.g. Brown v. Davy (1889), 18 O.R. 559 (Common Pleas Div., at p. 562; Majer v. Majer (1977), 4 R.F.L. (2d) 383 (Ont. Co. Ct.), at D. 386.
[**134] The foregoing, of course, refers to the situations where there were no findings of duress or undue influence.
[**135] It was also stated authoritatively in Cowan v. Cowan , supra , that a finding of a valid gift is a complete answer to claims of resulting trusts or claims for the imposition of a constructive trust.Plaintiff's Claims to Defendant's Severance Pay and Pension Entitlement
[**136] As stated, the plaintiff asserts [*60] that it was part of the understanding between them as to the sharing of their property, that the defendant would transfer to an R.R.S.P. for her benefit, the amount he received as severance pay from Champlain College and the amount that had been accumulated in his pension account at Champlain College. It was estimated at the time of the transfer of the half interest in the condominium that the value of the severance pay and the pension entitlement would be between $ 50,000 and $ 55,000.
[**137] None of such property was ever transferred. The defendant had submitted his resignation to Champlain College in May 1989, and his pay continued until August of that year. The defendant testified that the net amount of the severance pay received by him was $ 12,800 and that to the knowledge of the plaintiff that amount was expended to pay for the couple's living expenses in the summer of 1989. The submission of the defendant on this is that even if there had been an enforceable agreement the plaintiff must be taken to have agreed to a change in the agreement.
[**138] As to the intention to transfer the pension entitlement there is uncontested evidence that the parties attended at the [*61] offices of a trust company to discuss the settling up of the R.R.S.P. It transpired later that the defendant's pension rights had vested and that under applicable law he could not do what he had said he would do because the funds would not simply or promptly be released to him or transferred to an R.R.S.P. There was uncontested evidence that the corpus of the pension entitlement was somewhat more than $ 32,000 and that shortly before the trial the defendant, by then long unemployed, had managed to withdraw some $ 6,000 of those funds, to use to pay living expenses.
[**139] Counsel for the defendant points out that the claims in respect of the alleged promise to contribute to the R.R.S.P were not pleaded and submits that in any event they were based upon an alleged oral contract upon which no action might be brought, by virtue of allegedly applicable provisions of the Statute of Frauds .
[**140] With regard to the absence of a pleading I will observe only that if other things had been equal (and they are not), I would most Probably have allowed an amendment to the pleadings even toward the end of the trial. Having regard to the provisions of Rule 26 and the general nature [*62] of the plaintiff's claim, the indicated amendment could have been allowed without any prejudice to the defendant that could not have been cured by an adjournment and an order as to costs.
[**141] Not as a matter of estate litigation but as written memoranda tending to confirm the oral agreement alleged by the plaintiff with respect to the defendant's severance pay and accumulated pension funds being put into an R.R.S.P. for the Plaintiff, counsel for the plaintiff submits the wills made by each of the parties. The argument is that they are written memoranda showing that the parties intended a sharing of the properties of the parties. The wills were briefly described above. They are reciprocal wills but they are not true mutual wills in that they do not state that each is made a consideration of the other and they do not provide that they are not to be revoked.
[**142] The legal situation in this regard is materially different from that stated or asserted by either counsel. To begin with the provisions of the Statute of Frauds relative to "agreements made in consideration of marriage" were repealed by the Family Law Reform Act , 1978. Thus, neither the defendant's evocation [*63] of the Statute of Frauds nor the plaintiff's scrambling to find a sufficient memorandum in writing to "take the case out of the Statute" are germane. No provision relating to "agreements made in consideration of marriage" appears in the Statute of Frauds , R.S.O. 1990, ch. S-19. As that statute deals with procedural law the version current at the time of the trial is the one that applies. In any event, the repeal took effect long before the agreement alleged on behalf of the plaintiff.
[**143] The requirement for writing is now found in the Family Law Act , R.S.O. 1990, Ch. F-3. It is provided by s-s. 55(1) of that Act that:(1)A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.
[**144] That provision appears in Part IV of the Act. In s. 51 of the Act it is Provided that in Part IV the term "domestic contract" includes a ,.marriage contract" and that the term "marriage contract" means an agreement entered into under s. 52 of the Act. Section 52 provides that:
(1)A man and a woman who are married to each other or intend to marry may enter into an agreement in which [*64] they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including: (a) ownership in or division of property...
[**145] Thus the Act requires that the sort of agreement alleged by the plaintiff in respect of the defendant's severance pay and pension entitlement be in writing to be enforceable. It is not in writing. The common law rules and devices developed in expression of judicial distaste for the Statute of Frauds do not apply to the above-quoted provisions of the Family Law Act , nor should they, since that statute provides a scheme for the equalization of the values of the net family property of the parties to a marriage.
[**146] Moreover, even if we were still under the older regime of the Statute of Frauds , as it used to apply to marriage contracts, the reciprocal wills, which are not even mutual wills, would not constitute memoranda sufficient to take the case of the Statute of Frauds or its requirement for writing.
[**147] But for the requirement of writing I would have held that the defendant's pension entitlement and severance pay were agreed to be transferred [*65] to an R.R.S.P. in the name of, or irrevocably for the benefit so of the plaintiff. I accept the plaintiff's evidence as to the understanding between the parties and I find that the defendant did promise to put his said assets into an R.S.S.P. of the plaintiff.
[**148] I accept the defendant's evidence that $ 12,800 of severance pay had, to the knowledge of the plaintiff been applied to the couple's living expenses before the separation - and so I would have treated that as an amendment to the oral agreement.
[**149] Sad to say, the statutory provisions govern, and the oral agreement is unenforceable. The evidence of the reciprocal wills is without effect and represents yet another instance of the trial being rendered longer and more expensive because the premise upon which evidence was introduced was incorrect. Plaintiff's counsel made no reference whatever to the above-quoted provisions of the Family Law Act .
[**150] In my view, the above-quoted provisions of s-s. 55(1) of the Family Law Act mean not only that no action may be brought to enforce the oral agreement but that provisions of the oral agreement (for example, with regard to the R.R.S.P.) cannot be treated [*66] as the basis for set-off or a charge against the defendant's interest in the condominium.
Marriage Settlement
[**151] With respect to the transfer of a half interest in the condominium it is submitted on behalf of the defendant, in the alternative, that the transfer formed part of a marriage settlement given in consideration of the defendant's promises to 1) marry the plaintiff, and ii) resign his teaching position and move to Toronto to live with the plaintiff. It is submitted for the defendant that both the marriage and the resignation took place and so there could not be any restitutio in integrum . It is further submitted on behalf of the defendant that a marriage settlement cannot be set aside on any ground, even fraud. In support of his position counsel for the defendant cites Johnston v. Johnston (1884), 52 L.T.R.N.S. 76 (C.A.), Attorney General for Ontario v. Perry (1934), 3 W.W.R. 35 (J.C.P.C.) and National Trust v. Heichman (1920), 2 W.W.R. (S.C.C.). The last mentioned of those cases was not a case between husband and wife and was decided by the majority on the basis of estoppel.
[**152] Marriage settlement is not the basis of my decision [*67] that there has been a gift to the defendant of a half interest in the condominium. I would observe only, in admitted obiter dictum , that we do not appear to have a formal marriage settlement but, of more significance, I think that the language of the other two cases seems to come from a different era when divorce was far less common, women were far less independent, the law was relatively inflexible and the vestiges of the view that women were subordinate, or property, were more strongly present. I will say only that had I found undue influence, I very much doubt that the cited decisions would have prevented me, in the light of emerging contractual doctrines of fairness and unconscionability, from upsetting the transfer.Plaintiffs Claims for Damages for Trespass to the Person
[**153] The plaintiff testified that after the wedding the defendant's behaviour toward her deteriorated. Her assertion that his sexual demands changed, to her distaste, was not shown to have been the subject of significant contemporaneous objection. I am not satisfied that there was not acquiescence at the time or times followed by complaint much later. The case for damages in that regard is not made [*68] out.
[**154] The plaintiff also complains that she was manhandled by the defendant on an occasion when the couple met Paul Sheldon on the street and the plaintiff patted his stomach. The plaintiff complains that the defendant pulled her roughly away and in the process squeezed her upper arm so tightly that it was significantly bruised. The defendant does not deny the incident but denies using excess force or causing bruising. I am not persuaded that the defendant's conduct was a trespass or a battery or sufficient to cause the court to interfere in a domestic squabble.
[**155] Clearly more serious is the plaintiff's complaint that after the wedding the defendant frequently behaved in an unruly and overbearing way in the condominium, for example, repeatedly barging uninvited into her son CHILD's bedroom, past his closed door, and when he knew that CHILD did not want him to come in. In the same period the defendant once barged into the bathroom where the plaintiff was naked and pulled her, naked, into the view of her son, CHILD, and made derogatory comments to him about her. The plaintiff testified she quickly fled the apartment with CHILD and the dog but without any money and [*69] that she walked many kilometres to the house of a friend where she stayed for four days and CHILD stayed for another four days.
[**156] The defendant denies that the incident happened and because CHILD was not called to testify with respect to it, asks me to infer that his evidence would not have been helpful to the plaintiff. I decline to draw that inference. I believe that the plaintiff had other reasons for not calling her son. She would not have wanted to expose him to the pain of having to testify as to such a humiliating experience. I would have thought, however, that prudent counsel would have called the friend to whose house they fled.
[**157] The actions of the defendant in this regard clearly constitute an assault, and one for which the redress of aggravated damages is clearly appropriate.
[**158] On behalf of the defendant it was submitted that no evidence as to the quantum of damages was led on behalf of the plaintiff. That is so. But this is not a claim for lost time at work or for property damage. The assault was an unjustifiable and wilful affront to the feelings and dignity of the plaintiff, to say nothing of the feelings of her son who is not a party to the [*70] action (but could have been as to this incident).
[**159] I assess aggravated, compensatory damages of $ 10,000. Had punitive damages been claimed i would have awarded them, because of the arrogance, high-handedness and cruelty of the defendant's action. The plaintiff is entitled to prejudgment interest at the statutory rate from the date of the commencement of the action or the first notice of the claim for damages, whichever is the earlier - but see below as to the set-off.Defendant's counterclaim for Occupation Rent
[**160] The defendant states that the Plaintiff obtained an interim order that had the effect of depriving him of his right to possession of the condominium and he claims occupation rent. The claim at the time of the trial was $ 20,000 and to date would be a claim for upwards of $ 40,000.
[**161] The condominium was a matrimonial home. It was also, as it had been before the wedding, the home of the plaintiff and her son CHILD who was for much of the material time, a minor, and who was dependant upon the plaintiff, and likely to remain so until now.
[**162] It has been found that there is no domestic contract between the parties. It follows that there [*71] is nothing ousting the statutory obligations of the defendant to help with the support of CHILD. There is no evidence of the defendant ever having contributed to the support of CHILD, nor is there evidence of a settled intention on the part of the defendant to act as parent to CHILD.
[**163] It is clear on the evidence that the defendant paid none of the expenses of the condominium while he lived in it with the plaintiff and none of such expenses after he left.
[**164] The defendant was clearly aware of the plaintiff's support obligations with respect to CHILD and that she was barely making ends meet before the defendant came back into her life. He must have known that she needed the condominium as a home for herself and CHILD, and that without support from the defendant she would not be able to continue to have the condominium as a home for herself and CHILD if she had had to pay occupation rent to the defendant in the event of the separation of the parties.
[**165] Had an application been made to me by the Plaintiff for an order, under s.24 of the Family Law Act , that she be given exclusive possession of the matrimonial home I would have made such an order. Having regard [*72] to the learning disability affecting CHILD and the higher probability of his need for continued support I would have continued the exclusive possession to the present.
[**166] I note that under paragraph 24(1) (d) of the Family Law Act the court may on application direct the spouse to whom exclusive possession has been given to make periodic payments to the other spouse. The provision confers a discretion upon the court. It is a discretion that I largely refuse to exercise in favour of the defendant, having regard to all of the circumstances described or referred to above. The defendant's impact upon the plaintiff and her family has been disastrous. He was aware of the weaknesses of her position and of the extent to which her solvency and ability to provide for her children had depended upon help from her father and family. The defendant's own evidence was that when the marriage was planned, and when the plaintiff was very concerned about how her father would react to the suggestion that she convey to him a half interest in the condominium, the defendant met with the father and (as I understand it, without mentioning the proposed transfer) assured the father that he, the defendant, [*73] would look after the plaintiff!
[**167] Although she learned it only after the marriage - and perhaps not until after the separation - the plaintiff has testified that at no time before or during the marriage did the defendant change his address as shown on his driver's licence, or on any of his credit cards. The plaintiff asserts that the whole exercise of marrying her was thus shown to be a manipulative property grab. While that cannot be said to be proven, there are many aspects of this case where the defendant's success may be said to depend more upon technicalities and legal rules than upon the merits of his position in the deeper sense of the term merits.
[**168] Thus, he benefits because the agreement with regard to the R.R.S.P. is unenforceable, and because the hapless plaintiff knew what she was doing and, however reluctantly, intended the transfer to him.
[**169] I have already commented upon his plan to be supported by the plaintiff's work while he lived the life of a contemplative and a Jewish scholar. His absence of prior scholarly production or attainments make his plans appear so grossly self-indulgent and self-referencing as to seem almost delusional. His [*74] self-centredness was apparent in his description of his relationship with the Plaintiffs children. In his discourse they do not appear as persons in their own right but only as occasions for posturing by him. He was far from a responsible role with regard to them, or with regard to the welfare of the plaintiff. He is the beneficiary of rules designed to Protect persons with Qualities and a sense of responsibility that he evidently lacks.
[**170] Given the plaintiff's needs and the defendant's record, and on all the facts of this case, it would not further justice if I were to exercise my discretion to allow the defendant significant occupation rent. I allow occupation rent in an amount equal to the prejudgment interest on the above-mentioned $ 10,000 damages award, which amounts will be set-off against each other.
Disposition
[**171] A judgment will issue, declaring that the defendant is the owner of a half interest in the condominium, that the plaintiff has no enforceable claims to pension funds of the defendant or in respect of his severance pay.
[**172] The judgment will include a judgment for the plaintiff, for assault, for aggravated damages of $ 10,000 with prejudgment [*75] interest as aforesaid.
[**173] The judgment will provide for very limited occupation rent, as aforesaid.
[**174] The judgment will provide for the sale of the condominium and if the parties or their counsel cannot agree as to the mechanics and details of the sale, that the sale is to be conducted by the Master at Toronto. The damages award of $ 10,000 is to be paid from the proceeds of the sale of the defendant's interest in the condominium.
Costs
[**175] The defendant has been successful on the principal issues contested by the parties, but the plaintiff has been successful as to some issues.
[**176] Submissions as to liability for costs should be made to me in writing, with the defendant taking the lead.
[**177] Although I will of course not take any action or make any decision or Pronouncement upon them until I have given counsel a full opportunity to make submissions, I am concerned that this may be a case in which some part of the costs ordered to be paid by the plaintiff should be absorbed or paid or repaid by counsel for the plaintiff and/or the previous counsel for the plaintiff who initiated the action. my concerns are that the trial took much longer than [*76] it should have and that much of the additional length was due to the purported similar fact evidence that was not such and, more importantly, to matters of the defendant's religious status and that of Paul Sheldon which were matters tangential, if that, to the issues in this litigation. The absence of psychological evidence as to the plaintiff's mental/emotional state, the absence of pleading as to the R.R.S.P., the absence of a claim for punitive damages in respect of outrageous conduct, the absence of reference to statutory provisions requiring a domestic contract to be in writing, written argument made without any reference to the accompanying copies of judicial decisions, are the main causes of concern with respect to whether counsel should bear part of the costs of what became, largely because of those elements, a quite long trial. The trial was undoubtedly very expensive having regard to the amounts at stake.
[**178] For his part the defendant, who has grandly expressed his recurrent if not continuous concern for the well being of the plaintiff, while contributing so largely to its opposite, should make submissions that address the question of whether or not this is a case [*77] where the lust order would be no order as to costs.
[**179] Even if an order for no costs were made that would not put an end to my enquiries as to fees charged to the plaintiff.
[**180] Copies of these reasons are to be delivered by counsel for the plaintiff to the plaintiff herself and to the former counsel herein to the plaintiff.
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Rabbi serving at Toronto churches [Perry Cohen]
By Ron Csillag
Canadian Jewish News - September 3, 1998
SECTION: v.28(34) S 3'98 pg 7; ISSN: 0008-3941
CBCA-ACC-NO: 4273083
Toronto -- A rabbi with a controversial past is serving as a ''rabbi-in-residence'' at several Toronto churches.
Rabbi Perry Cohen, 60, holds Bible study classes, psalm readings and weekend retreats, and ''brings a Judaic perspective'' to church life, says United Church spokesman CHILD Wyatt. The rabbi has served as''rabbi-in-residence'' at several local United Church congregations, including Lawrence Park, Parkwoods United and the former St. George's and Eglinton United congregations.
Rabbi Cohen says he's also been involved with Anglican and Catholic congregations.
Rabbi Cohen was spiritual leader of Congregation Shaar Shalom in Chomedey, a suburb of Montreal, for five months in 1979, but was fired for sexual impropriety.
He subsequently admitted to having had an affair with the sister of a congregant.
His principal interest is in ''sharing the Bible to further a greater understanding of Judaism and [of] the Jewish roots of Christianity,'' Rabbi Cohen told The CJN.
He also explains Jewish holidays and Hebrew prayers, and ''spends a lot of time on [the meaning of] Shabbat.''
Reaction to his activities has been ''very positive,'' he said.
''But I don't feel as though I'm doing anything new. This is not out of the ordinary. I'm just sharing the Bible.''
Wyatt said Rabbi Cohen's presence resulted in increased interest and a boost in attendance at weekly Bible classes.
The rabbi receives an honorarium, not a salary for his efforts, Wyatt added.
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A Sharing of Traditions; 'Rabbi in Residence' Helps Members of Trinity United Church in Kitchener Deepen Their Understanding of God
By Mirko Petricevic
The Record (Kitchener/Cambridge/Waterloo, ON) - March 1, 2003
Section: FAITH, Pg. J8
The sermon that was served up at Trinity United Church in Kitchener a couple of weeks ago had a slightly different flavour.
The preacher, Rabbi Perry Cohen, wore a skull cap and the prayer shawl as he stood in the usual domain of a Christian minister at the downtown church on Frederick Street.
That vision was only a morsel of what was to follow. Because until Palm Sunday on April 13, Cohen is serving as Trinity's rabbi in residence.
For the next six Sunday evenings, he will lead studies on the Scriptures that will be read during services the following Sunday.
Cohen will also lead an intensive weekend retreat at the church, one that will conclude with a traditional Jewish Sabbath meal.
It's a program the Toronto-based rabbi has presented to about 200 congregations since the early 1980s.
Trinity has hired him to help parishioners deepen their understanding of Jesus' relationship to God, said Rev. Lori Campbell, one of two pastors at the church.
On Palm Sunday, Cohen will hold a Passover seder, the type of meal the Gospels say that Jesus shared with His disciples before being betrayed, condemned and crucified.
By understanding the Jewish custom of the seder, "we're able to understand the Last Supper a bit better," Campbell said.
SABBATH MEAL
To whet the congregation's appetite for the rabbi-in-residence program, Cohen staged a simulated Sabbath meal for 80 people, mostly Trinity's parishioners, in the church's gymnasium two weeks ago.
It reflected the type of ritual performed in observant Jewish homes each Friday after sunset.
It was the type of weekly meal that Jesus would have sat down to 2,000 years ago.
As Trinity's parishioners sat at a series of tables arranged to form a giant rectangle in the church hall, Cohen cast his mind back to ancient Jerusalem.
"We're entering into the same words they themselves prayed," he said.
Although Cohen doesn't broach the topic of current Middle East politics or historic clashes between Christians and Jews, he says the table is a place where people can work out their differences.
"We don't know how to sit at the table with one another," he said. "If we could learn to sit together at the table, we'd have it all licked."
In language reminiscent of communion, Cohen says the table could be a place for us to receive each other, bless each other, break ourselves open to each other and offer ourselves to each other without being afraid of enjoying each other's company.
"It takes courage to be intimate."
HISTORY LESSONS
During the simulated Sabbath meal, Cohen peppered his remarks with jokes, history lessons and explanations of the purpose for the rituals.
To start the meal, his wife, Hannah, covered her hair with a white kerchief and lit two candles on a table in the centre of the room. Each candle represented man and woman who were created in God's image, the rabbi explained.
Then everyone ritually washed their hands and carefully broke bread in a scripted fashion.
The three main goals of the drawn-out ritualistic dinner, Cohen said, is to sanctify, to rest and to delight.
To sanctify -- Ritual reminds us that God is part of the meal, Cohen said.
Great time is also taken to prepare the meal and set the table with a white table cloth and flowers "to honour this space and know holy space in holy time," he said.
To rest -- In the Book of Exodus, Moses descends Mount Sinai carrying a set of God's commandments for the Hebrew people who were recently freed from slavery in Egypt. One commandment instructs the people to rest one day a week.
Cohen also referred to verse 10 of Psalm 46: "Be still and know that I am God."
The Sabbath is a time to ignite the spark of the divine within us, he said.
Although the message was serious, the afternoon wasn't morose.
"You'd be surprised how God can handle the world for 24 hours without us," Cohen quipped.
To delight -- In between joking and cajoling people around the table, Cohen sang and clapped in an upbeat tempo before allowing everyone to queue for the buffet meal.
Instead of dining on traditional Jewish food, people scooped up jellied salad, lasagna and other potluck goodies. The menu was strictly vegetarian to avoid transgressing kosher dietary laws.
Joan Taylor, of Waterloo, was one of the parishioners feasting on the ancient rituals.
"I've got great admiration for Jewish people and the religion in general," she said.
Two of her daughters married Jews, so three of her grandchildren are being raised in the Jewish tradition, she said.
Not long ago, Taylor acknowledges, it was unthinkable that a rabbi would speak from the pulpit of a Christian church.
As a young woman attending a Protestant church during the 1940s, Taylor said she wouldn't have dreamed of dating a Roman Catholic or a Jew.
Times have changed and "I think that's great," she said. "I think that's what we need."
At Christmas time, Taylor tops her tree with a Star of David that was a gift from her grandson.
Although Taylor is no stranger to Sabbath dinners, it's unusual to have a rabbi at the table to answer questions, she said.
A straw poll of people around the table revealed that many attended the Jewish-style meal to learn about the roots of their Christian faith.
Parishioners around the table lobbed questions at the rabbi.
Why were men at the table required to wear skull caps?
Cohen's answer: In some cultures, covering the head is a sign of respect.
Why weren't all the women required to cover their heads?
They're considered inherently more prayerful. They don't have to be reminded to pray.
What's the Torah?
The first five books of the Bible.
What's done with the Torah scroll after it wears out?
The Torah contains the name of God. It must not be disrespected, so it is ceremonially buried.
After the main course, Cohen continued to delight.He instructed everyone to stand up and join hands.
CONGA LINE
After a bit of singing and taking a few small steps from side to side, he led everyone in a conga line snaking around the gym.
Laura Fraser, 17, tagged onto the end of the man-made serpent. The only teenager in the room, she looked a little uncomfortable.
"Our religion isn't as fun filled, crazy and festive," she said. "I'm not used to this."
Fraser came to the dinner after learning that her mother planned to attend. But she was having trouble forgetting about school work despite God's order to take a break once a week.
"That makes sense," she said about the commandment. "That's just hard to do with the lifestyle we have now.
"Maybe they were better organized back then," Fraser said as she munched on dessert.
After the dinner, the questions and the answers, it was time to acknowledge God. Rev. Campbell and Hannah Cohen led the group in saying grace.
"Those who make the table of God their eating place will be content," they all said together.
"Those who sit at the table of greed will never be satisfied . . ."
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--Margaret Mead
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