COURT FILE NO.: 5736/11
DATE: 2012-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TAMMY JEAN GREDIG
Applicant (“Wife”)
– and –
MICHAEL GEORGE DENNIS
Respondent (“Husband”)
Deborah-Anne Hennessey, for the Applicant
Mark A. Shields, for the Respondent
HEARD: August 28, 2012 at St. Thomas
HEENEY J:
[1] Normally, courts are asked to make interim orders to determine where the children will live after their parents choose to separate. In this case, the court is being asked, in effect, to order a physical separation of the parents, against the will of the husband, by awarding interim exclusive possession of the matrimonial home to the wife. With an order that the husband must leave the matrimonial home in hand, the wife then seeks interim custody of the children, as well as child and spousal support.
[2] The husband has brought his own cross-motion, which seeks interim exclusive possession of the matrimonial home in his own favour, as well as interim custody of the children. During the hearing of the motion, though, he practically abandoned those claims, and instead argued that the status quo should continue. His position was that there is no persuasive evidence that the best interests of the children are being adversely affected by having their parents continue to live separate and apart under the same roof.
[3] The parties began living together in 1995, and married in August, 1996. There are three children of the marriage: Heather, born June 8, 2001; Kyle, born August 17, 2003; and Nathan, born November 6, 2005.
[4] The marriage had been breaking down for several years, and culminated in the husband’s departure from the matrimonial home on July 1, 2011. However, he moved back into the matrimonial home 3 weeks later, over the wife’s objections, and has remained there ever since. I am advised that he occupies a bedroom in the basement.
[5] The matrimonial home is situated on a farm property of about 100 acres, which contains an apple orchard and a shop. The farm was purchased from the wife’s father, Albert Gredig, for $400,000. He took a mortgage back for the full amount of the purchase price. Payments were made initially on the mortgage, but nothing has been paid for the past 8 years. Mr. Gredig retains a right of first refusal to repurchase the property should the parties decide to sell it, at the original price of $400,000 with an adjustment for any mortgage payments made. No appraisal has been done on the property, but the husband believes it is worth more than $600,000, which makes it virtually certain that Mr. Gredig would exercise his right, once the parties decide to sell.
[6] The wife continues to farm the orchard, and makes her living producing apples and cider. The husband is a Vice-Principal at an elementary school.
[7] The affidavits contain the usual conflicting information about the roles of the parties in the upbringing of the children. However, some areas of common ground can be found. The wife was more involved than the husband in raising the children when they were very young, but the husband is, at present, actively involved in their lives. The wife is a marathon runner who trains regularly, and has in the past pursued other sports activities such as baseball and volleyball, which meant that the children have been left in the sole care of the husband while she pursued her athletic interests. He has also been the sole caregiver of the children while the wife worked Saturdays at her seasonal job at a local nursery. Given his vocation as a teacher, it is not surprising that he is the parent who is primarily involved in helping the children with their homework. Both parties take the children to their sporting activities, since the children are often going in different directions at the same time.
[8] The wife expressed concern about the husband’s alcohol consumption. He was involved in a serious motor vehicle accident in February 2010, in which he sustained multiple contusions and a probable concussion, and his injuries have had an impact on his alcohol consumption. In January 2012, he reported to his physician, Dr. Dougherty, concern about his own alcohol intake, stating that he was drinking 6 beers per day in order to sleep. In a follow-up visit in March 2012, the husband reported that he had reduced his intake to 2 to 3 beers per day.
[9] While excessive alcohol consumption would certainly be a cause of concern to the court, there is very little evidence that it represents a current problem, nor that it has had any impact on the husband’s ability to care for the children. There is a report in the wife’s affidavit that their daughter, Heather, expressed a concern in August 2012 that she did not want her father to drink at their upcoming camping outing at the back of the farm, because she wanted a friend to join them and she would be embarrassed by his behaviour when drinking. The wife reported a similar concern from Heather, that she was worried about a planned vacation with her father at a rented cottage during the summer. Heather anticipated that if the husband is drinking, he will sleep excessively, leaving her to care for her two younger brothers.
[10] It is important to note that both of these incidents describe worries that Heather had about what might happen if her father was drinking. There is no evidence that any problem involving alcohol consumption actually occurred during either event, both of which did indeed proceed as planned.
[11] It is also noteworthy that the wife is apparently confident enough in the husband’s ability to care for the children that he left them in his care while she attended the Boston Marathon earlier this year.
[12] Looking at the evidence as a whole, both parties present as caring, capable parents who are able to provide for the needs of the children, and who are presently playing active roles in the lives of the children. It would be difficult, based on the affidavit material before me, to decide whether the interests of the children would best be met by having the children reside with one parent over the other.
[13] However, it seems to me that it is not necessary to address the interim custody issue unless and until I have granted an order for exclusive possession. Until such time as the parties are residing in different places, it is unnecessary to decide with whom the children will live. Accordingly, I must first address the exclusive possession issue.
[14] Section 24 of the Family Law Act, R.S.O. 1990 c. F.3, gives the court jurisdiction to give one spouse exclusive possession of the matrimonial home. The factors to be considered by the court are set out in ss. 24(3) and (4), which read as follows:
(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.
[15] Much of the discussion during argument focussed on the long term reality that the wife will end up in the matrimonial home, by virtue of the manner in which title is held. When the property is eventually put up for sale, either on consent or through a court order in these proceedings, I conclude that Mr. Gredig will probably exercise his right of first refusal, repurchase the property, and then permit the wife to continue to reside and farm there as a tenant. However, at present there is no request for an order for the sale of the matrimonial home, nor has either party even sought such relief in their pleadings. Mr. Gredig’s right of first refusal is, therefore, presently irrelevant. What is relevant is that both spouses have an equal right to possession of the matrimonial home, pursuant to s. 19 of the Act. That presumptive right may only be displaced if the court is satisfied that such an order is necessary, following an analysis of the criteria in s. 24.
[16] Awarding one party interim exclusive possession of the matrimonial home will have an impact far beyond simply forcing a physical separation of the parties. It will also virtually predetermine the issue of interim custody. Given that the matrimonial home is the only home that the children have ever known, it is an easy argument to make that the best interests of the children, at least in the short term, require that their lives be disrupted as little as possible by allowing them to remain in their familiar family home. All else being equal, this would support an interim order that the children primarily reside with the parent who has interim exclusive possession.
[17] Turning to an analysis of the enumerated criteria, subsections 24(3)(b) and (d) have no application because there has been neither an order nor an agreement. There is no evidence regarding subsection (e), which deals with the availability of other suitable and affordable accommodation. There is no evidence of any violence committed by one spouse against the other or against the children, as referenced in criterion (f). The wife has alleged that the husband treats her in a contemptible fashion in the presence of the children, is sarcastic and undermines her authority. That is a far cry from the kind of psychological warfare that was found to constitute “violence” in Hill v. Hill, [1987] O.J. No. 2297 (Gen. Div.), which was relied upon by the wife. To the extent that the husband is alleged to have behaved inappropriately, this will be considered below in the context of criterion (a), the best interests of the children.
[18] With respect to criterion (c), the financial position of the parties, the husband earns $92,319 as a Vice-Principal. While this means that he has the financial means to obtain alternate accommodation, it also means that he has the financial ability to pay a substantial amount of child and spousal support to the wife which would enable her to obtain alternate accommodation. That renders this factor neutral, as far as he is concerned.
[19] As to the wife, she earns her living from farming the orchard where the matrimonial home is situated. However, if the court simply orders a continuation of the status quo, as advocated by the husband in argument, she will continue to be able to do so. Her ability to conveniently and efficiently carry on her livelihood would only be adversely affected if I were to award exclusive possession to the husband, which is not a position that was seriously pursued by the husband, and is not one which I would seriously consider in any event. Once again, therefore, this factor has been rendered neutral.
[20] This leaves one criterion remaining: the best interests of the children affected. While there is no evidence as to their express wishes, there is evidence that the farm is the only home that they have ever known, that they are happy living there and want to continue doing so. If the wife obtains an exclusive possession order, one could conclude that their best interests would be served by awarding custody to the wife, or at least ordering that the primary residence of the children be with her on the farm.
[21] However, if the motion and cross-motion were simply dismissed, and the status quo continued, the same result would follow. The children would remain in the only home they have ever known, with both parents continuing to reside there as well.
[22] The question of the best interests of the children, therefore, comes down to this: are they suffering as a result of the continuing cohabitation of their parents, such that an order for exclusive possession should be granted and the husband should be ordered to leave the matrimonial home?
[23] The affidavit evidence of the wife makes general allegations of a “toxic” atmosphere in the home, and alleges that the husband treats her in a contemptible fashion in the presence of the children. However, there is almost no evidence of any specific examples of such conduct, where it could be said that the best interests of the children were compromised.
[24] Indeed, Ms. Hennessey, for the wife, was able to point to one incident only as concrete evidence that the best interests of the children were being compromised by the status quo. On April 13, 2012, the wife was leaving to participate in the Boston Marathon. She said goodbye to the children. The husband was standing there and she asked him if he was going to say goodbye. He replied that he had nothing to say to her. The child Heather started to cry when she heard him say this.
[25] During reply argument, I pressed Ms. Hennessey as to whether there were any further examples of a negative impact on the children, and she conceded that there were none. The balance of the evidence supports a conclusion that the children are happy and well-adjusted under the current living arrangements.
[26] The parties have now been living separate and apart under the same roof for more than one year. The fact that only one noteworthy incident has emerged during that entire time leads me to conclude that the parties have done an outstanding job of making sure that they keep their marital dispute between themselves and insulated from the children. They are both to be commended for ensuring that the children have not become “collateral damage” as a result of the separation.
[27] There is no question that it would be in the interests of the wife to order that the husband move out of the matrimonial home. She has now determined that the marriage is over, and is entitled to get on with her life. Although the parties have, in general, acted very civilly toward each other, at least in the presence of the children, there is no doubt that an ongoing current of tension exists between them. It would be surprising if it were not so, given that the wife is being forced, as it were, to share the same residence with the husband despite the breakdown of their marriage.
[28] However, the test is not the best interests of the wife, but rather the best interests of the children, which governs whether the court will take the drastic step of ordering one party out of the matrimonial home. On the evidence, I am unable to conclude that the best interests of the children require such an order. Their best interests are being met by the status quo. The motions of both parties for interim exclusive possession are, therefore, dismissed.
[29] In view of my ruling on that issue, it is not necessary to make an order for custody, since the children will continue to reside with both parents. Similarly, an order for support is unnecessary, since both parties continue to contribute to their joint living expenses. If any dispute arises as to what those contributions should be, that may be dealt with in a subsequent motion.
[30] I recognize that this ruling does nothing to advance the resolution of the issues between the parties. However, in my view it is preferable to have issues such as custody resolved at trial, with the benefit of oral evidence, rather than effectively predetermining that issue by awarding exclusive possession at this stage, in the absence of a compelling reason for doing so. Of course, this does not mean that a trial is inevitable. Given the long term reality of the situation as described above, it is open to the parties to negotiate a resolution whereby the husband will vacate the matrimonial home, and a mutually agreeable parenting plan for the children will be put in place. It goes without saying that this course of action is preferable to enduring the acrimony and expense of a trial.
[31] The motion and cross-motion are, accordingly, dismissed. In view of that result, my preliminary view is that there should be no costs. However, if either party wishes to pursue the issue of costs, they may do so by written submissions, to be served and filed within 15 days, with any response within 10 days thereafter and any reply within 5 days thereafter.
“Regional Senior Justice T. A. Heeney”
Regional Senior Justice T. A. Heeney
Released: September 17, 2012
COURT FILE NO.: 5736/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TAMMY JEAN GREDIG
Applicant (“Wife”)
– and –
MICHAEL GEORGE DENNIS
Respondent (“Husband”)
REASONS FOR JUDGMENT ON A MOTION
Heeney R.S.J.
Released: September 17, 2012