COURT FILE NO.: FS-12-0258
DATE: 2012-12-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Leonard Rodney Anness
Chris Arnone, for the Applicant
Applicant
- and -
Jennifer Ann Kovacs
Unrepresented
Respondent
HEARD: October 31, 2012,
at Thunder Bay, Ontario
Platana J.
Reasons For Judgment
[1] On August 16, 2012 Mr. Anness filed an application seeking custody/access to his child Layla, Ann, born April 19, 2007; an interim and final order under the authority of Section 104 of the Courts of Justice Act and Rule 44 of the Rules of Civil Procedure for the recovery of his solely owned residence at 625 Catherine Street in the City of Thunder Bay; leave to issue a writ of possession for the residence; for the reimbursement of expenses incurred by him in relation to the Respondent’s occupation of the home since separation; and such further and other relief.
[2] The Respondent was served on August 24, 2012 with the application, financial statement, supporting affidavit and case conference notice, by personal service. The appearance date was noted as October 10, 2012. On August 29, 2012 the Respondent attended sessions 1 and 2 of the Mandatory Information Program. Despite having been served with notice, the Respondent did not attend the case conference nor has she filed any responding material. On the return of the case conference an endorsement was made that the matter could proceed by way uncontested hearing pursuant to Rule 10 (5) of the Family Law Rules
[3] The Respondent did not attend the hearing on October 31, 2012.
[4] The relationship between the parties began in April 2005 although they did not begin living together until January 2007. The child Layla was born in April 2007. The Applicant’s evidence is that during the relationship he was significant involved with child care for Layla when his work schedule permitted. The parties have developed their own schedule of childcare for Layla which is a joint custody arrangement with Layla having her primary residence with the Respondent. There have been no problems with respect to custody and access between the parties.
[5] In December 2006 using his own equity and a mortgage in his name, the Applicant purchased the residence at 625 Catherine Street in Thunder Bay. At the time he was a heavy equipment operator and the Respondent worked for the Canadian Grain Commission.
[6] His evidence is that the parties, who never married, separated in December of 2010. He states that at that time he did not wish to have to disrupt the Respondent, and more importantly the child, to move from the residence in winter, and therefore he agreed that he would vacate the residence on her agreement that she would leave his home in the summer of 2011.
[7] When he left the residence, all of the utilities and all of the debt were in the Applicant’s name. His evidence is that the parties agreed that he would give the Respondent $430.00 per month which she would deposit into a joint account from which the mortgage and utility payments and insurance would be paid. The Applicant subsequently remortgaged the home to pay off the debts and the arrangement remained the same. Tab 2 of the evidence brief filled as exhibit #1 shows payments into the joint account and expenses coming out up to and including February 2012.
[8] In March 2012 the Applicant continued to deposit $215.00 every 2 weeks into the account, however, the Respondent stopped putting any money into the joint account. Mortgage payments of $321.00 were taken out of the account every two weeks previous to that time.
[9] In May 2012 the Applicant was required to pay a telephone bill for the residence as the bill was still in his name. He paid the outstanding amount of $406.30 and then discontinued the phone at his residence.
[10] The Applicant’s evidence is that he is continuing to make mortgage payments. Exhibit #1 notes that he has now made payments in the total amount of $6,138.00 as of November 12, 2012. All utilities in the residence are still in his name and as at the date of the hearing he was unaware as to the status of those accounts although there is no evidence that any of the other utility accounts are in arrears.
[11] He has been living until recently in apartments and currently lives with his girlfriend’s parents.
[12] Mr. Arnone seeks an order for custody and access as per the status quo which has been in effect between the parties. He references the affidavit which was filed in respect of this application and asks me to continue this status quo as the Applicant does not wish any disruption beyond what is necessary in the child’s life. As custody and access have been a non-issue between the parties since separation, I see no need to disturb that arrangement. It is in my view in the best interests of the child to encourage continued co-operation between the parents with respect to that issue.
[13] Mr. Arnone has requested that I order a writ of possession. He relies upon Rule 60.03 of the Rules of Civil Procedure and Section 104 of the Courts of Justice Act. He submits that the property is solely in the name of the Applicant. He notes that the evidence is that the Applicant paid the entire purchase price. He relies upon the evidence that until February 12, 2012 the Applicant continued to pay monies to the Respondent which up to that date she deposited into a joint account from which to pay the mortgage and utility payments. The Applicant’s evidence is that he has been making all of the mortgage payments since March of this year.
[14] In my opinion, s. 104 of the Courts of Justice Act does not give me the proper jurisdiction to order Ms. Kovacs to vacate the resident. That provision applies to personal property, whereas the order sought in his case relates to real property. Instead, I intend to rely on s. 96(1) of the Courts of Justice Act, which gives authority to the court to administer the rules of equity and the common law.
[15] In subsequent submissions in response to my request, Mr. Arnone argued that relief could also be granted on the basis of the tort of Trespass. He cites the decision of Hoilett J. in Calandra v. Parasco, 1998 CarswellOnt 4406, paragraph 13:
“The tort of trespass to land is committed by entry upon, remaining upon or placing or projecting any object upon land in the possession of the plaintiff without lawful justification. To be actionable, the defendant’s act must be voluntary, but it need not be intentional. Trespass may be committed either intentionally or negligently. The interference with the plaintiff’s property must be direct, not indirect or consequential.”
[16] He submits that this case is similar to the fact situation in Lewis v. Oriji, [2009] O.J. No. 281, where Justice Blishen in a motion heard an argument for the use of Trespass as the foundation for the removal of a non-owner common law spouse. Justice Blishen declined to order removal on the basis that (a) the Respondent (non-owner) party had lead evidence that supported a claim for constructive trust ownership of the property, and (b) that on the basis of that evidence, which led to credibility concerns, and the interim stage of that proceeding, the court was not in a position to order the non-owner spouse removed. Mr. Arnone submits that Justice Blishen did find appropriate jurisdiction to make the order for removal based on Trespass, and only declined to do so on the basis of the conflicting evidence and the stage of the proceeding. He submits that in this case, there is no conflicting evidence, and the court has heard oral testimony from Mr. Anness as to the terms of the purchase and maintenance of the home. Justice Kershman heard a motion in the same case in July, 2009, and did order the removal of the non-owner spouse on an interim basis, and a Writ of Possession was issued: [2009] O.J. No. 5719.
[17] Mr. Arnone submits that the use of the tort of Trespass does not depend on the stage of the proceeding (whether interim or final). The definition of Trespass includes “remaining upon … land in the possession of the plaintiff without lawful justification”. He submits that the evidence clearly makes out the tort of Trespass in this case, and that this forms a jurisdictional ability to order Ms. Kovacs’ removal from the home.
[18] Mr. Arnone further relies on Guenette v. Brisebois, 2004 CaswellOnt 4132, where a common law spouse was removed from a home as the non-owner. This was on an interim basis, but it is Mr. Arnone’s submission that nothing in these reasons limits this court to ordering possession only on an interim basis.
[19] It is finally submitted that Ms. Kovacs has no possessory right to remain in the home, and must not be allowed to benefit from her (a) being an unlawful resident in the home and, (b) her refusal to engage in this proceeding.
[20] With respect to the claim for the reimbursement of expenses, Mr. Arnone relies on Hollaway v. Devenish [2009] O.J. 5008 to claim occupation rent from the Respondent from the time she ceased making the mortgage payments as agreed upon by the parties. He argues that the Respondent initially agreed to vacate the residence in the summer of 2011, and that, despite repeated requests, she has failed to vacate and continues to reside there now.
[21] He further submits that the Applicant is entitled to be reimbursed for any utility expenses which may be outstanding and/or any expenses which he incurs for damages as may be discovered in the ninety days following after the point and time when he gains possession of the property.
[22] With respect to costs Mr. Arnone has presented a bill of costs seeking total fees and disbursements in the amount of $3,661.70. With respect to the issue of costs he presented a letter from himself to the Respondent in April 2012 which, although not a formal offer, he asks me to consider in as much as it would have left the Respondent in a much better position than she would be if I am now to order possession to the Applicant.
[23] I find it difficult to make an order of the nature requested without having heard from the Respondent. However, the Family Law Rules have not been complied with by her. Accordingly I must deal with the issues before me considering that she has not responded to any of the claims made by the Applicant particularly those with respect to the possession of the residence.
[24] I acknowledge that trespass was not specifically pleaded in this Application. However, the relief claimed for possession of the Applicant’s own home is clearly sought. In addition, the Application does seek further and other relief, and in equitable terms, has clearly established the grounds for trespass to be present.
[25] I am satisfied on the basis of the evidence that the Applicant is entitled to possession of his solely owned residence. The original request at the hearing was essentially for an order which would have given very short notice for the Respondent to vacate. Mr. Arnone, in response to a question from me, argued that the Respondent has done nothing to show any efforts to vacate since failing to adhere to her agreement to vacate in the summer of 2011.
[26] Mr. Anness’ evidence is that when he left the residence in December 2010 he agreed that Ms. Kovacs could remain in the residence for some time as he considered it to be in the best interest of Layla not to have to move in December. Relying on the same reasoning, I cannot now make an order for possession within such a short period of time as I consider would negatively impact on Layla’s best interest.
[27] In view of the timing of this Application, and no previous request for rent having been sought, I am not satisfied that the conditions for me to order occupation rent have been satisfied. The Applicant is entitled to any increase in equity and/or value of the home during the time the Respondent was in occupation.
[28] In considering all of the above an Order shall go as follows:
The parties shall have joint custody of the child of the relationship, namely LAYLA ANN ANNESS, born April 19, 2007, who shall have her primary residence with the Respondent, Jennifer Kovacs.
The parties shall each equally have the right to obtain directly from the relevant person or institution involved all educational, medical, psychological, psychiatric and religious records of the child, as well as the right to discuss the welfare of the child with the child’s teacher, doctor, psychologist, psychiatrist, minister or others who are involved with child. Without limiting the generality of the foregoing, the Respondent shall ensure that the Applicant is informed of the child’s medical and dental appointments, parent-teacher nights, and special events and activities the child is engaged in.
The parties shall consult with each other on any major decisions affecting the child, and shall make such decisions jointly.
Neither party shall relocate the child from the city of Thunder Bay without written consent of the other party or a court order allowing them to do so.
The Applicant shall have reasonable access to the child on reasonable notice, with an emphasis on flexibility, and without restricting the generality of the foregoing, shall have the following time with the child:
a. Every second weekend the Applicant shall pick up the child from daycare on Friday at 5:15 p.m., and the Applicant shall have the child until Sunday at 8:00 p.m., when the Applicant shall return the child to the Respondent;
b. Every second Tuesday overnight (on the week after the Respondent’s weekend with the child) from 5:15 p.m. until Wednesday morning, when the Applicant shall drop the child off at daycare or school;
c. On any occasion that the Respondent is out of the city overnight, or works a nightshift at work, for the entire period of same;
d. During the Applicant’s holidays from employment on two weeks’ notice to the Respondent; and
e. One-half of all school holidays, including one-half of Christmas, and equal sharing of Christmas Eve and Christmas Day, extended time during the summer, and sharing of long weekends on an equal basis.
If the Applicant experiences a change in his hours of employment (which are currently 9:00 a.m. until 5:00 p.m. Monday to Friday), the Applicant shall provide the Respondent of two-weeks’ notice of same, and the parties shall adjust the schedule of care to preserve the same amount of time for the Applicant with the child.
Leave is hereby granted pursuant to Rules 60.03 and 60.10 of the Rules of Civil Procedure for the issuance of a writ of possession of 625 Catherine Street in favour of the Applicant, Leonard Anness, effective February 28, 2013. The Enforcement Office is herby directed to enforce possession in favour of the Applicant.
When the Respondent vacates 625 Catherine Street, she shall be allowed to take her personal effects only from the home, subject to further agreement of the parties.
The Respondent is hereby ordered to pay to the Applicant the following reimbursement of expenses paid by the Applicant to the benefit of the Respondent:
a. $406.30 as reimbursement for the TBayTel phone and internet bill paid by the Applicant May 15,2012, and;
b. such further and other utility expenses and/or damage expenses as the Applicant may discover in the following 90 days. Should the Respondent discover any such utility expenses and/or damage expenses for which he seeks reimbursement, the Respondent is hereby permitted to bring the matter to motions court and lead affidavit evidence seeing particularization of the said expenses.
[29] The Respondent shall pay to the Applicant costs in the sum of $2,500.00 plus HST for fees, plus disbursements of $351.00 and HST of $25.22 on the disbursements.
___”original signed by”
Mr. Justice T. A. Platana
Released: December 31, 2012
COURT FILE NO.: FS-12-0258
DATE: 2012-12-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Leonard Rodney Anness
Applicant
- and –
Jennifer Ann Kovacs
Respondent
REASONS FOR JUDGMENT
Platana J.
Released: December 31, 2012
/mls