Superior Court of Justice – Ontario

Court File No.: FS-12-381493 Date: 2013-06-06

Re: Deborah Ann Leckman, Applicant And: Terence Srab Ortaaslan, Respondent

Before: C. Horkins J.

Counsel: Jaret Moldaver, for the Applicant Diane Klukach, for the Respondent

Heard: May 30, 2013

ENDORSEMENT

[1] The applicant’s motion seeks various types of relief. It is agreed that the request for exclusive possession of the matrimonial home is the only matter to be dealt with at this time. All other relief that is requested is adjourned to a date to be scheduled by the parties.

[2] In response to the applicant’s motion, the respondent also brought a motion. He also seeks exclusive possession of the matrimonial home. This relief was varied during the motion. The respondent is not seeking exclusive possession of the matrimonial home. Instead, he wants the parties and the children to remain together in the matrimonial home pending resolution of this application. In other words, he asks the court to deny the applicant’s motion for exclusive possession. The rest of the relief in the respondent’s Notice of Motion is adjourned to another date to be scheduled by the parties.

[3] The parties were married on December 7, 1996. They disagree on the date of separation. The applicant (mother) says that they separated on February 29, 2012 and the respondent (father) says they separated “in June 2012”.

[4] They have two children: Anna Emily Anjel Ortaaslan, born July 31, 1996 (age 16) and Garen Hacik Ortaaslan, born June 28, 2011 (age 12). They all live together in the matrimonial home located at 26 Stonegate Road in Toronto.

[5] The applicant was a vice president at TD Bank until September 13, 2012 when her employment was terminated. She was earning $417,000. She recently accepted a position at the Ontario Securities Commission earning $1,000 per diem and will work about 100 to 120 days per year. She has not been able to find employment to replace the level of income she earned at the TD Bank.

[6] The respondent is a self-employed mining analyst and consultant. His company is called TSO & Associates Inc. Over a two-year period (2010 and 2011), he reported income of almost $1.8 million. He says that his 2012 income has dropped to $110,372.

[7] The matrimonial home is registered in the applicant’s name alone. It was purchased in 2000. There is an appraisal of the matrimonial home as of May 2012 valuing it at $1.5 million. The respondent believes that it is worth more. The matrimonial home is unencumbered.

[8] It is clear from the evidence of the parties that there is a great deal of tension between them. The applicant’s affidavit explains that she has been primarily responsible for the children’s care since their birth and that she has effectively raised the children on her own with little assistance from the respondent. According to the applicant, the respondent has spent the majority of their married life (before separation) away from the matrimonial home and the family.

[9] The respondent states that there is “tension and hostility” between her and the applicant and that they do not interact much, if at all, in front of the children. They eat and socialize separately and spend time with the children alone. There have been no calls to the police and no incidents of assault.

[10] The respondent states that he does not have an office outside of the home. Currently, he is away from the matrimonial home 50 percent of the time. He travels to Montreal to help care for his mother and ill sister. Before separation he says that he was away one week per month whereas the applicant says he was gone 75 percent of the time.

[11] Currently, the respondent is confining his use of the matrimonial home to part of the first floor and an office that he has in the loft. He states in his affidavit that he lives in a 500 square foot area of the home. The applicant denies that he has an office in the home. Pictures that she took of the loft do not depict an office. The respondent did not provide any photographs of his home office.

[12] The applicant says that she has been primarily responsible for all costs associated with the matrimonial home including the mortgage. She acknowledges that the respondent contributed some money to home renovations, but not the approximated $200,000 the respondent claims to have paid for upgrades and renovations. The respondent does not deny that the applicant was the one who paid the mortgage. He simply says that he contributed over $200,000 to the matrimonial home.

[13] The respondent states that he has no other accommodation available to him in Toronto other than the matrimonial home. He claims that he cannot afford to rent alternative accommodation, especially if he is ordered to pay child support.

[14] The applicant describes the situation at home as follows. She says that the children are “living like prisoners” in their home. When the respondent is home he gives them the “silent treatment”. Infrequently, he will speak to Garen. He instigates conflict by “passive aggressive or simply aggressive means”. Using Anna’s words, she explains that she and Anna and to a lesser extent Garen, feel like they are “walking on eggshells” in their home. The respondent stares Anna down and makes sounds of disgust while Anna eats. He will pull the television remote out of her hand. She describes the respondent as messy and dirty and he treats the home like a hotel leaving garbage lying around. The children are scared that they will set their father off. They try to avoid him but he will lash out at them. The home atmosphere vacillates from silence to belligerence, to episodes of screaming and yelling. She states that the respondent’s behaviour is unpredictable.

[15] The relationship between the respondent and Anna began to deteriorate long before separation. They fought about whether Anna should play soccer. The respondent was upset when Anna quit soccer and he lashed out at her when Anna decided that she no longer wanted to attend the Armenian school (the respondent is Armenian). The respondent told Garen in front of Anna that he did not want Garen to be like Anna. He told Anna that she was a horrible and deceitful person. During the marriage, the applicant states that the respondent rarely supported the children in their various activities.

[16] About one year ago the applicant asked the respondent for his consent to send the children to counselling and he refused. Given Anna’s age, she was able to attend counselling without her father’s consent.

[17] The respondent vigorously denies the applicant’s evidence. While he concedes that he has a strained relationship with Anna, he says that the applicant has alienated him from Anna. He also states that the applicant abuses alcohol and medication. The applicant denies this. I note that despite the respondent’s allegation about alcohol and medication abuse, he leaves the applicant alone with the children while he is in Montreal.

[18] Anna has reported to her mother that she is uncomfortable living in the same home with her father and she wants their living arrangements to change. The applicant states that with some reluctance, Anna agreed to see a therapist to help her get through this difficult time in her life.

[19] Regardless of whose evidence I accept about the family circumstances, there is no doubt that the situation in the matrimonial home is tense and that this is a difficult time for all of them, particularly the children.

[20] In March 2013, the applicant took Anna to see Carol-Jane Parker, a psychotherapist at The Willow Centre. Ms. Parker prepared a report dated April 25, 2013 that the applicant attached to her affidavit on this motion. Ms. Parker agreed to do an assessment of Anna to determine how she is doing emotionally and to make recommendations about whether therapy or counselling would be helpful.

[21] The report states that the assessment is ongoing, that Ms. Parker has not yet met with the parents and has not been asked to do an assessment of the family. The report does not say how many visits Ms. Parker has had with Anna. The report records what Anna told the therapist and sets out the preliminary results of the assessment.

[22] Anna reported the following to the therapist. Her parents separated about a year ago and her father has refused to leave the house. He is living in the living and dining room area. Anna feels intimidated by her father. Growing up he has never been there for her “financially emotionally or physically”. She has no memory of him hugging or kissing her or giving her a Christmas gift (except an Armenian book about Jesus).

[23] Anna told the therapist that she constantly feels like she is “walking on egg shells” when her father is in the house and does not want to continue living with a “walking time bomb”. She reported to the therapist that her father was angry and upset when Anna decided to leave the Armenian school after Grade 10. Anna had been unhappy at the school since Grade 7. After talking to her doctor, Anna decided to change schools and attend the local high school. When her father found out he yelled at Anna and told her she was a “terrible person”. The report notes that recently the respondent “apparently told the mother of a friend of Anna’s that Anna was delinquent and out of control”.

[24] Ms. Parker states that Anna is “clearly angry and disappointed with her father”. She told the therapist “she would do anything she could do to get him to leave.” When asked how the ongoing conflict at home is affecting her, Anna told Ms. Parker that she has “headaches, difficulty sleeping and sometimes can’t eat”.

[25] The following excerpt from Ms. Parker’s report sets out the preliminary results of the assessment:

Although the assessment is ongoing, preliminary results certainly suggest that Anna is under considerable stress and suffering from symptoms of anxiety and depression. The Million Adolescent Clinical Inventory (MACI) completed by Anna, for example, suggests that she has become increasingly pessimistic about the future and that she feels a sense of hopelessness and despair. She also exhibits a diminished capacity for pleasure, a preoccupation over lessened adequacy, pessimism, a loss of confidence, feelings of worthlessness and resentment. She also fears venting her anger and losing what security she possesses. Her anger is therefore turned inward leading to self-derision and guilt. Although on the surface Anna may appear to be coping well, preliminary test results suggest that she is emotionally fragile and that as she feels increasingly more hopeless, she may experience passive suicidal ideation. This is not to suggest that she is currently suicidal but that she is feeling so angry, depressed and hopeless, that she may think of suicide, at times, as way out of the difficult situation she experiences herself to be in.

The Legal Framework

[26] Section 24 of the Family Law Act, R.S.O. 1990, c.F3, gives the court the power to grant one party exclusive possession of the matrimonial home. Section 24(3) sets out the criteria that the court shall consider in deciding whether an order for exclusive possession should be granted. The criteria are as follows:

(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

[27] In determining the best interests of the child, s.24(4) directs that the court shall consider the following:

(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.

Analysis

[28] The criteria in ss. 24(3)(b) and (d) are not relevant in this case. I will consider the remaining criteria.

[29] The financial position of both spouses is sound. Although the applicant recently lost her job at the TD Bank, she has found alternative employment, albeit at a lower salary. The respondent also generates a substantial income. Their financial position is particularly strong given the absence of any significant debt. They each report substantial savings in their financial statements.

[30] I reject the respondent’s evidence that he “has no financial resources to afford to rent alternative accommodations”. Given his earnings and what is set out in his financial statement, I find that the respondent can afford to rent alternative accommodation.

[31] I will deal with the criteria in ss. 24(3)(a) - (f) together. Violence referred to in s. 24(3)(f) is not restricted to physical violence. It includes a “psychological assault upon the sensibilities of [another] to a degree which renders continued sharing of the matrimonial dwelling impractical.” Where the conduct is “calculated to produce and does in fact produce an anxiety” state which puts a person in fear of the other’s behaviour and impinges on that person’s mental and physical health, violence has been done to his or her emotion equilibrium as if he or she had been struck by a physical blow. (Hill v. Hill, [1987] O.J. No. 2297 at paras. 25)

[32] In Hill, the husband began a campaign of harassment tantamount to psychological warfare. The wife’s therapist testified that her physical and emotional health were threatened by the continued presence of the husband in the matrimonial home. The court found that it was not possible for the parties to occupy the same dwelling having regard to the psychological warfare being waged against the wife that qualified as “violence” under s. 24(3)(f) of the Family Law Act. The wife was granted exclusive possession of the matrimonial home.

[33] The applicant states that the respondent is subjecting her and the children to behaviour that is causing Anna to become more and more emotional, anxious and depressed. He regularly abuses the applicant and Anna verbally and emotionally. The respondent treats Anna with “silence, disgust or disdain”. The applicant’s evidence is consistent with Anna’s report to Ms. Parker. Such behaviour by the respondent amounts to a psychological assault.

[34] I am directed to consider the views and preferences of the child if they can be ascertained. Anna’s views and preferences are set out in Ms. Parker’s report that I have already reviewed. I cannot reasonably ascertain the views and preferences of Garen through a non-party source such as a therapist. Garen has not received counselling.

[35] When I consider the affidavits from the parents, it is fair to say that the respondent has a better relationship with Garen than he does with Anna. Beyond stating this obvious comparison, the parents disagree on incidents of conduct that the respondent has allegedly subjected Garen to. Nevertheless, the applicant encourages the respondent to have a relationship with Garen. There is no reason why a healthy relationship cannot be encouraged and supported if the applicant is granted exclusive possession of the matrimonial home.

[36] The children have lived in the matrimonial home for many years. It is close to their school. Despite the disruption in their lives that is caused by the separation, they continue to do well at school. The outcome of this motion will not require the children to move. The sole issue is the applicant’s request for exclusive possession. If granted, it is the respondent that must move.

[37] The preliminary results of Ms. Parker’s assessment are very concerning. In my view, Ms. Parker’s preliminary report of her assessment is strong compelling evidence that requires exclusive possession of the matrimonial home to be granted to the applicant.

[38] During argument, counsel the respondent asked the court to adjourn this motion. Counsel argued that I should not rule on the exclusive possession motion without further evidence. She correctly pointed out that the assessment is not finished and details such as the number of visits are not identified in the report. Counsel also stated that she wants to cross-examine Ms. Parker to test the validity of the complaints of Anna and the applicant.

[39] Counsel for the respondent also questioned whether Ms. Parker has the credentials to conduct the MACI referred to in the above excerpt. No evidence is available to show that Ms. Parker’s expertise should be questioned. Furthermore, both counsel agree that Ms. Parker is a “respected” psychotherapist that “we all know and use”.

[40] I find that the preliminary results of Ms. Parker’s assessment of Anna demonstrate that it is not in Anna’s best interests for her father to continue to reside with the family in the matrimonial home. Clearly, the continuation of this unfortunate living arrangement is detrimental to Anna’s well being. Ms. Parker states that she is “extremely concerned about Anna’s state of mind and the amount of stress she appears to be under”. She concludes that “any efforts to resolve the conflict between her parents as quickly as possible would be in [Anna’s] best interests”.

[41] The application was commenced on September 26, 2012 and the parties have attended one case conference. Based on the evidence before me, there is no prospect of this application coming to an end in the near future. It is imperative that Anna’s best interests be addressed now and not when the parties manage to either settle or reach a trial.

[42] The specific details that Ms. Parker sets out in her preliminary assessment provide more than amply cause for concern. Furthermore, if the current living situation continues, there is a risk that Anna’s mental well-being might deteriorate further. As the report notes, “Anna is feeling so angry, depressed and hopeless that she may think of suicide, at times, as a way out of the difficult situation she experiences herself to be in.” The respondent argues that Anna is not currently suicidal. Rather, the report says his daughter “may” think of suicide. The court is not prepared to wait and see if Anna’s situation deteriorates further before dealing with this exclusive possession motion. An adjournment of the motion would place Anna at continued risk and such delay is not in her best interests. As the court stated in Menchella v. Menchella, [2012] ONSC 6304 at para. 33, “[t]he best interests of a child are paramount in determining an order for exclusive possession.”

[43] For the reasons set out above, I grant the applicant interim temporary exclusive possession of the matrimonial home.

[44] If the parties cannot agree on costs of this motion they will exchange brief written submissions and deliver them to me by June 26, 2013.

C. Horkins J.

Date: June 6, 2013