SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-11-71762-00
DATE: 2012-04-02

RE: William Somerville v. Andrea Olynyk

BEFORE: Ricchetti, J.

COUNSEL:
S. Sands, for the Applicant (Father)

J. Feldman, for the Respondent (Mother)

HEARD: March 30, 2012

E N D O R S E M E N T

The Motions

1There are two motions before the court.

2The Mother brings a motion for temporary sole custody of the children of the marriage, temporary exclusive possession of the matrimonial home, interim child support/S. 7 expenses, and interim disbursement of $10,000.

3The Father brings a cross-motion seeking an order that, pending the Office of the Children’s Lawyer (“OCL”) report and sale of the matrimonial home, the children of the marriage remain in the matrimonial home in a nesting arrangement.

4Interestingly, neither party seeks the immediate sale of the matrimonial home. The Father simply asks that the hearing of the motion on the sale of the matrimonial home be adjourned to a date to be agreed on.

The Facts

5The Mother is 47 years old. The Father is 48 years old. The Father is presently a Senior Accounts Executive for a consulting firm. The Mother is a registered professional dietician. Both work full-time. The Father's current income is approximately $122,000. The Mother's current income is approximately $70,000.

6The parties started to live together in December 2002.

7The parties married on May 17, 2004.

8The matrimonial home is located at 4190 Garrowhill Trail, Mississauga, Ontario. The Father bought the matrimonial home prior to the marriage. It remains solely in his name.

9There are two children of the marriage: Andrew William Somerville (d.o.b. November 30, 2005) and Katie Victoria Somerville (d.o.b. August 23, 2007). (the "Children").

10The parties separated in September or November, 2010.

11Since the separation, the parties have lived in the matrimonial home separate and apart. It has not been without incident. The police have been required to attend the matrimonial home on a number of occasions. Both parties have accused the other of misconduct. Both suggest the other has made unfounded allegations to the police to get the other parent removed or restrained from returning to the matrimonial home. In addition, the parties have had the Children’s Aid Society (“CAS”) involved to investigate the situation with the Children. In late 2011 the CAS found no protection issues requiring their involvement and closed its file.

12While the Father makes very serious allegations regarding the Mother's misconduct and psychological stability, the Father does not consider these issues to be serious enough to warrant parenting concern since he is agreeable to the Mother parenting his Children on a week about basis. Similarly, the Mother makes very serious allegations regarding the Father's misconduct, yet, the Mother does not oppose the Father's week about parenting which would result in the Father parenting her Children on a week about basis. As a result, there appears no reason to delve into the allegations by each party regarding their superior ability to care for the Children and the other's parent's misconduct or inferior ability to care for the Children. The allegations and explanations can await a trial.

13It is common ground that the parties cannot continue to live under the same roof since an incident on March 21, 2012. The discoveries and events of that day make for a very volatile situation between the parents. Accepting either parent's description of what had occurred at the matrimonial home, it is a "war zone" with the Children right in the middle of it.

14The real and sole issue before this court was exclusive possession of the matrimonial home. The Wife submits she should have exclusive possession. The Father submits a nesting arrangement be put into place essentially granting exclusive possession of the matrimonial home on a week about basis.

15While the OCL recently advised the parties that it had accepted the referral in this matter, would conduct a s. 112 investigation and report to the court, the OCL investigation has not gotten very far under way. Recently, as a result of the events of late March, the matter was once again referred to the CAS by the police and the Father. Should the CAS commence or re-open its investigation, this will likely delay or defer the OCL's present investigation.

Analysis

16Obviously, given that it is common ground the parties cannot continue to both reside in the matrimonial home, either one party will be granted exclusive possession or a nesting arrangement be put into place. Both parties have an equal right to possession of a matrimonial home. Neither party has a greater right to exclusive occupation of the matrimonial home.

17There is no dispute that the primary factor in determining competing claims to exclusive occupation of the matrimonial home is: what is in the Children's best interests? The relevant portions of s. 24 of the Family Law Act provide:

(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

(d) direct that the contents of the matrimonial home, or any part of them,

(i) remain in the home for the use of the spouse given possession, or

(ii) be removed from the home for the use of a spouse or child;

(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e).

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

(4) In determining the best interests of a child, the court shall consider,

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child’s views and preferences, if they can reasonably be ascertained.

18There is no doubt the conflict between the parents is having an adverse effect on the Children. It is not in their best interests the parents continue to live in the matrimonial home together. The real issue is which of the proposed arrangements is best in these circumstances.

i) Nesting Arrangement

19Nesting arrangements provide for the least disruption to the Children's lives. The Children continue to live in the same home they have known. They continue to live near their school and friends.

20However, nesting arrangements are fraught with problems for the parents. Each of the parties would have to obtain alternate accommodations during the week they do not reside in the matrimonial home. In order words, three residences will be required - the matrimonial home and one for each of the parties. This is a significant cost in a situation where there may not be significant assets or significant available funds to the parties.

21One of the major problems with a nesting arrangement in this case is that it will likely result in the termination of the nanny - the secondary care giver for the Children since birth and the one piece of stability during this difficult time. I say "likely result in the termination of the nanny" since the Father has questioned the need for a nanny, the Father has on occasions stopped paying his share of the nanny's salary and because the nanny has already reported the Father to the police because of the Father's alleged conduct. In these circumstances, it is highly unlikely the nanny would remain in the matrimonial home during the weeks when the Father resided there.

22There are no easily ascertainable and reasonable alternate accommodations for either party. The Father has been staying at a hotel during the short interim period out of the matrimonial home pending the determination of this motion. Previously, the Mother went looking for a shelter and when she could not find a shelter and she stayed in a hotel during a short period out of the matrimonial home. If either party had other reasonable alternate accommodations, they would have availed themselves of those accommodations. The Father suggests the Mother has alternative accommodations with her sister or friends. There is insufficient information to consider these viable alternatives and the availability is inconsistent with the Mother's actions of staying at a hotel.

23The Father submits he would be prejudiced in his relationship with the Children if the Mother had parenting time in the matrimonial home - a place familiar to them, whereas he would be parenting the Children "in a basement apartment". I agree that this has the potential for prejudice to the Father if the Mother is granted exclusive possession for an extended period of time. But even the Father submits that at the end of the school year, he will seek to have the matrimonial home sold.

24There are several other factors which need to be considered:

a) As stated above, the matrimonial home will likely be sold in the not too distant future. The nesting arrangement or the exclusive possession will end soon. Any prejudice will be minimized. The Father suggests he is waiting to obtain a "sale" order until the end of the school year for the Children's sake. Both parties appear to need the equity for future accommodation and general expenses. I see no reason why the parties cannot cooperate and agree on the sale of the matrimonial home with a closing at or around the end of the school year. If either party had asked this court on these motions to order the matrimonial home sold, I would have granted the order; and

b) The trial of this Application can and will be expedited. The Application was commenced on April 14, 2011. No doubt documentary exchange has taken place. The central issues to be determined at trial are:

• Child custody/ access;
• Child and spousal support;
• Matrimonial home;
• Equalization.

I am satisfied that the trial in this Application could take place in September or October, 2012. By that time, the OCL or CAS will have a report available for the court. The issues are not so complex. I have scheduled a Settlement/Trial Management Conference in this case for May 24, 2012. If this date is not convenient for counsel, they should jointly arrange for a new date with the Trial Coordinator's Office as soon as possible.

25I reject the Father's counsel's submission that removing the Father from the matrimonial home would be to disrupt the status quo. The status quo is both parents living under the same roof with the Children. Firstly, given the obvious conflict between the parties and the need to routinely involve the police or CAS, I do not accept that the status quo is in the best interests of the Children. Secondly, the status quo has to change in any event because of the inability of both parties to get alone without serious conflict. They cannot be in the home at the same time. Out of sheer necessity, there will have to be a change.

26Given the above concerns, in particular, the short time frame, the additional cost to the parents to set up two additional residences, the likely loss of the nanny, the nesting arrangement is not appropriate in these circumstances.

ii) Exclusive Possession

27The real question, having rejected a nesting arrangement, is which parent should have exclusive possession of the matrimonial home.

28There are a number of facts, relevant to this determination:

a) The Father travels as part of his business and is sometimes gone for several days at a time;

b) The Father has an active life which includes hockey twice a week during the evenings and a golf membership at a private club during the summer months. In other words, the Father has activities which take him out of the matrimonial home routinely;

c) For the reasons described above, if the Father had exclusive possession of the matrimonial home, this will likely result in the end of the nanny's involvement in the Children's life - a constant since birth and a stable influence in the past several years. On the other hand, if the Mother is granted temporary exclusive possession of the matrimonial home, the nanny will continue on - albeit with less to do during the week the Children are with the Father. This adds a further degree of stability in the Children's lives;

d) The Mother's Financial Statement does not show she has significant assets at this time. The Father's Financial Statement is somewhat confusing. He had some $850,000 in bank accounts on the date of marriage (in addition to the matrimonial home). His Financial Statement states he transferred the money to Scotia Accounts in 2008 but by Valuation Date in 2010, there does not appear to be any significant cash in the accounts. There are several very large debts with respect to two collateral mortgages that are unexplained for the time being;

e) The Father has a higher income and could more likely afford a second residence for a short period of time pending sale of the matrimonial home;

f) The Mother's counsel submitted she would be prepared to move out of the matrimonial home if the Father could provide her some money to acquire accommodations (which amount would be credited to the Father at trial). This was not acceptable to the Father. The Father's primary objection against doing this was that there might not be an equalization payment owing to the Mother. However, I do note that the Father stated at paragraph 25 of his Application that the matrimonial home was "brought into the marriage at a value of about $515,000" and, in his affidavit, states that it is now worth approximately $800,000. Given the appreciation in the value of the matrimonial home and the disparity in incomes for spousal support purposes, a modest advance for accommodation expenses of the Mother would have allowed the Father to avoid his primary concern that he would be prejudiced if the Mother parented the Children in the matrimonial home but he did not. Furthermore, from the Father's perspective, the Mother would have suffered the exact prejudice he sought to avoid and strongly he argued he would suffer; and

g) As I indicated above, the exclusive possession will be for a short time - until the matrimonial home is sold. The impact of an exclusive possession order is not what it might otherwise be where the time pending sale of the matrimonial home or trial will be a long time.

Conclusion

29Considering the Children's best interests and the other relevant factors, the Mother shall have temporary exclusive possession of the matrimonial home pending further order of this court.

Temporary Custody Order

30I am not persuaded it is necessary to make a temporary custody order in favour of one parent or the other at this time. The parties shall continue with temporary joint custody.

Conclusion

31The following order is made:

a) The Mother shall have temporary exclusive possession of the matrimonial home until it is sold or further order of this court. The Father shall not, except for one attendance to remove his personal belongings arranged at a time agreed to by the Mother and when necessary to drop-off or pick-up the Children, attend at the matrimonial home. Personal belongings shall not include regular household items needed for the continued living in the matrimonial home;

b) Neither party shall make any disparaging comment to the Children regarding the other parent;

c) Neither party shall provide any information or discuss with the Children the ongoing litigation;

d) Both parties shall cooperate fully with the OCL and/or CAS investigation;

e) The parties shall have interim joint custody of the Children. The parties shall communicate by e-mail regarding any urgent or long term issues involving the Children which need to be decided upon. Otherwise, the party having parenting time with the Children shall be made the necessary decisions with respect to the Children;

f) The parties shall share equal parenting time on a week about basis. Unless the parties agree on a different time, the parenting exchange shall take place after school on Fridays and, if there is no school on Fridays, it will occur at 4:00 p.m. at the matrimonial home; and

g) Other issues in the Mother's motion or the Father's cross-motion are adjourned sine die .

Costs

32Written submissions for any party claiming costs shall be provided to me within 3 weeks from the release of this decision. The submissions are limited to 3 written pages plus a bill of costs plus any authorities.

33Responding submissions to any claims for costs shall be provided to me within 2 weeks thereafter. The submissions are subject to the same limits on length.

34There shall be no reply submissions without leave.

Ricchetti, J.