COURT FILE NO.: FS-12-00376887-0000
DATE: 20130724
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Joseph Allan Freeman, Applicant
- and -
Susan Freeman, Respondent
BEFORE: Justice S. M. Stevenson
COUNSEL: Rodica David, Q.C., for the Applicant
Michael Stangarone, for the Respondent
DATE HEARD: July 11, 2013
E N D O R S E M E N T
Introduction
[1] Both parties brought motions seeking substantial relief and this matter was scheduled for a full day-long motion. At the commencement of the hearing of the motions the Court was advised that the applicant, Joseph Freeman (the "applicant") had accepted parts of the respondent, Susan Freeman's (the "respondent") Offer to Settle dated July 8, 2013. Pursuant to this acceptance, the issue of custody of two of the children Amy Freeman ("Amy") born February 8, 1997, age 16, and Adam Freeman ("Adam") born March 21, 2001 age 12, is to be adjourned to trial. Pending trial, Amy and Adam's primary residence shall remain with the respondent.
[2] Additionally, the applicant is to have access with Amy and Adam subject to their views and preferences and he shall continue to have telephone access with Adam pursuant to the order of Czutrin J. dated April 5, 2013. The parties also agreed that they shall attend for questioning on mutually available dates no later than September 30, 2013.
[3] There still remained many substantial issues to be determined on these motions, including motions for contempt brought by both parties. After a lengthy recess to allow for discussions between the parties, they agreed that the only issues to be determined at this hearing were the issues of the sale of the matrimonial home being sought by the applicant, and exclusive possession of the matrimonial home being sought by the respondent. The parties agreed that the remainder of the issues would be adjourned to a date to be fixed and that they would first attend at a settlement conference which was set at the motion for August 21, 2013.
[4] The respondent's counsel was also seeking to argue the issues of disclosure and the requirement that the applicant attend for a Functional Abilities Assessment. This issue was opposed by the applicant and given the time constraints, I indicated that this matter should also be adjourned to be heard with the other outstanding issues.
Issues
[5] The following are the issues for determination:
Should there be an order for the immediate listing and sale of the matrimonial home or, should the respondent be granted an order for exclusive possession of the matrimonial home pending a determination of the issues at trial?
Analysis
The Applicant's Position
[6] The applicant submits that the parties own as joint tenants the matrimonial home, known municipally as 168 St. Germain Avenue, Toronto Ontario. He contends that the matrimonial home is the most significant asset owned by the parties. The home is located in the Lawrence Park area of Toronto and has a value of approximately $1.2 million. The home is subject to two mortgages and a secured line of credit totalling approximately $120,000. The applicant further submits that deducting the encumbrances and allowing for a 6% real estate commission, there is approximately $1 million equity in the home which would entitle both parties to approximately $500,000 each on sale.
[7] It is the applicant's position that he has been attempting since shortly after the date of separation of June 30, 2011, to reach an agreement with the respondent to sell the matrimonial home. When the applicant left the matrimonial home on June 30, 2011 he moved into his parents' condominium until August 2012. He contends that due to the lack of room and sleeping space, he had to move into a small duplex with his brother and sister in August of 2012. At this duplex he had to share a part of the living room area with his brother which was divided off by curtains in order to maintain some privacy. He submits that these accommodations were inadequate for three adults to reside together comfortably.
[8] Since approximately May 2013, the applicant has been residing in a one-bedroom apartment, paying $1,490 per month in rent. It is the applicant's position that he finds himself in "catastrophic" financial circumstances. He submits that he has been doing everything that he possibly can to have the matrimonial home sold but the respondent has not cooperated. He lost his employment in June of 2012 and he also suffers from Parkinson's disease, having been diagnosed in 2009. He further contends that there has been substantial delay on the part of the respondent and that the respondent has not looked for other affordable accommodations nor has she pursued full-time employment as a teacher in order to better her financial situation.
[9] The applicant further submits that he commenced his motion to sell the matrimonial home in November of 2012 and that the applicant has had a substantial period of time since separation and since the commencement of the motion to prepare the children for the possibility that the matrimonial home will be sold. He further submits that the market conditions are most favourable now and that he will suffer prejudice if the sale does not take place in the immediate future. He also contends that the summer is an ideal time for the respondent and the children to relocate.
[10] The applicant disputes the respondent's allegation that it is in the best interests of the children that the matrimonial home not be sold at this time. It is the applicant's position that the eldest child Sarah is away at school at McMaster University and no longer resides full-time in the matrimonial home. Amy has only a few friends in the neighbourhood with the rest of her friends being spread throughout the city as she attends the University of Toronto School ("UTS"). Amy will also be attending university in two years. The applicant submits that Adam has to change schools as of September 2013 given his move to middle school and even though he has friends in the neighbourhood, he will also be making new friends at his new school. The applicant also submits that there are many French immersion schools available for Adam to attend. He contends that it is not imperative that the children reside in the Lawrence Park area and, in any event, there are ample affordable accommodations available to the respondent to both purchase and rent in the Lawrence Park area.
[11] The applicant further contends that the respondent has already had over two years of exclusive possession of the matrimonial home and if the matter is delayed further to be determined at trial it will be approximately 3 years that the respondent has had exclusive possession. He further contends that he has a prima facie right as a joint tenant to the sale of the matrimonial home and that the respondent's claim for exclusive possession which she intends to pursue at trial, must have at least a reasonable prospect of success. It is the applicant's position that the respondent's claim for permanent exclusive possession, or exclusive possession until 2015 as she submits will be argued at trial, has no reasonable prospect of success. The applicant contends that there is no reason for the matrimonial home not to be sold as the children do not need to reside in the matrimonial home for them to attend appropriate schools.
[12] The applicant also points to the fact that he has significant debts as set out in his Financial Statement sworn June 27, 2013. As a result of being terminated from his employment at IBM in June of 2012, he has been without employment and has accrued substantial debt which is now approximately $200,000. Since the time of his termination, he has attended three different career counselling programs sponsored by his former employer and is seeking opportunities in employment that will be less stressful for him given he has Parkinson's disease. He submits that his disease is a progressive disease and that even if he were healthy, he is 55 years of age and has no university degree. He contends that it will be difficult for him to obtain employment and this is a significant reason why he requires his share of the equity from the matrimonial home immediately as he is in a desperate financial situation.
[13] The applicant contends that for the first six months after the date of separation, he paid the carrying charges of the matrimonial home plus he provided one-half of his pay cheques twice monthly to the respondent. In January of 2012 he submits that he stopped making payments towards the expenses of the matrimonial home but that he paid child support in the amount of $815 per month in accordance with his income of approximately $45,000 gross per year. He further submits that in June of 2012, despite the fact that he was not in receipt of any income having been terminated from his employment, he continued to pay $453 per month in child support. When he began to receive Employment Insurance Benefits in approximately January of 2013, he submits that he paid $356 per month for child support. It is his position that he has in fact overpaid child support by approximately $7,300 throughout these periods of time.
[14] Of the $200,000 owed by the applicant, he acknowledges that $150,000 out of the $200,000 is owed to his father who borrowed $150,000 on a line of credit from the bank and the applicant has spent this line of credit. The applicant submits that his father has to repay the line of credit to the bank. As per his agreement with his father, the applicant has been responsible for making the payments on the line of credit but he may no longer be able to do so given that his Employment Insurance benefits end in August. He further contends that the respondent's position that the monies borrowed from the applicant's father totalling $150,000 should be perceived as a gift is without merit given that these funds must be repaid to the bank as the applicant's father had to borrow these funds.
[15] The applicant also contends that the respondent is not realistic and that the home must be sold. He submits that neither party can afford to maintain the matrimonial home given their respective financial positions. The respondent's income as a supply teacher is only approximately $30,000 gross per year and the applicant is unemployed and searching for employment. He contends that the reality is that it is in the best interests of the entire family that the matrimonial home be sold. It is his position that the children will adjust to the sale of the matrimonial home and that there is no factual evidence that the sale would be detrimental to the children. He contends that none of the children have special needs and in any event, there are other affordable accommodations in the area that will allow the children to attend the same schools.
[16] The applicant submits that he has provided evidence from his realtor, Helen Saykali, of 45 other affordable listings, based on the equity that the respondent will receive from the sale, in close proximity to the matrimonial home along with 33 rental listings with three to four bedrooms averaging between $1,500 to $3,500 per month. He contends that the information from his realtor provides that there is ample opportunity for the respondent to move and to either purchase a new home/townhome without a mortgage, or be left with only a small mortgage given the amount of equity that she would receive from the sale of the matrimonial home.
[17] The applicant further submits that despite the availability of these accommodations, the respondent has provided no evidence that she has gone to view any homes to purchase or any homes/condos/apartments to rent from the list provided by the applicant's realtor or from other realtors she submits that she has contacted. The applicant further submits that the respondent's claim that the current costs with respect to the matrimonial home are low and could be significantly lower if the applicant agrees to re-amortize the mortgage, does not justify a request for a sale given the matrimonial home should have been sold earlier and a reduction in the amount by re-amortizing would not be significant and should not be a factor for consideration on this motion.
[18] The applicant also disputes the respondent's allegation that she is unable to obtain employment in an area away from the matrimonial home as a supply teacher or a permanent teacher. He contends that she has provided no evidence detailing her attempts to contact other schools outside of her local area. She has available to her a vehicle and is able to commute to other areas for employment.
[19] The applicant also submits that it is imperative that he have proper accommodations in order to enjoy time with the children at his residence. His current accommodations do not allow for this. He acknowledges that he has not shared time with the children for over two years and that he has made an allegation of parental alienation against the respondent. He has been attempting to see his children through reunification counselling through Ms. Diane Moody. It is his position that this reunification counselling has failed so far given the respondent's refusal to cooperate. This is the subject of the applicant's motion for contempt. The parties will be seeking to continue reunification counselling with a new counsellor.
[20] The applicant denies the respondent's allegation that the applicant has finances in order to support himself prior to trial given that he receives "gifts" from his father and that he has enjoyed an extravagant lifestyle since the date of separation. He submits that there have been no gifts from his father as indicated and these funds must be repaid. He acknowledges that he has had to incur expenses on his credit cards with respect to purchasing furniture as the respondent refused to provide him with any furniture from the matrimonial home. In submissions, counsel for the applicant acknowledged that the applicant has occasionally gone out to restaurants as this has assisted his emotional state and was due to the fact that he did not have proper accommodations in order to cook for himself, thus requiring him to eat out frequently.
[21] The applicant further contends that he is owed a substantial amount of occupation rent. It is his position that the matrimonial home could have been rented for $3,000 to $3,500 per month and that he is claiming one-half ($1,625 per month) as his portion of rent. He submits that the respondent rented out the basement for $550 per month but ceased renting when the applicant learned this information. He is seeking on this motion that the amount of $37,375 at a minimum be held back in an interest-bearing trust account from any proceeds from the sale of the matrimonial home as it is his position that he is owed at least this amount for occupation rent and ongoing occupation rent.
[22] The applicant also seeks an order that he have exclusive possession of the matrimonial home pending the sale as he contends that the respondent has not been cooperative, she has allowed the condition of the matrimonial home to deteriorate as evidenced by pictures that he has submitted taken April 22, 2013 and that the prospects of the respondent being cooperative are minimal. The applicant submits that he will put the matrimonial home in a reasonable state of repair and ensure that a sale takes place immediately. The applicant relies on the decision of Zamler v. Zamler (1997), 27 R.F.L. (4th) 100 (S.C.J.) in support of his position that a spouse's consent can be dispensed with on the sale of the matrimonial home and that one spouse can be given carriage of a sale when it is obvious that the other spouse will not cooperate.
The Respondent's Position
[23] The respondent contends that this is the worst possible time to sell the matrimonial home. She submits that the matrimonial home is an anchor for the children and that there is no prejudice to the applicant in delaying the issue of selling the home for approximately six months until it can be determined at trial. It is her position that the respondent has access to significant funds to continue living comfortably until trial as is evidenced by his spending habits and what she contends are gifts from his father that have been provided to the applicant throughout the marriage and since separation.
[24] The respondent also contends that the matrimonial home is the only home that the children have known and is in the neighbourhood in which the children all grew up. She further contends that to force a sale of the matrimonial home will be detrimental to the children as they are attached to the home, their neighbourhood, and their friends and this provides much needed stability to them. The respondent submits that almost all of Sarah's friends live within a few blocks from the matrimonial home, Amy's best friends live within three blocks and all of Adam's friends live within the neighbourhood.
[25] It is also the respondent's position that in March 2013 Adam was accepted into the Extended French Program at Glenview Senior Public School. She has submitted a letter from Adam's teacher, Ms. Ng, dated November 26, 2012 in support of her position that Adam needs to attend Glenview. Ms. Ng in her letter indicated that she was recommending the program for Adam given the smaller class size and a greater exposure to the French language. It is the applicant's position that Adam will be unable to attend the school with his close friends if the matrimonial home is sold as the respondent will be forced to relocate outside of the area.
[26] The respondent submits that Amy is doing extremely well at school and will graduate from UTS in June 2015. The respondent submits that if the home is ordered sold, she will be forced to use her capital to rent accommodations and will find it necessary to remove Amy from UTS as she will need her funds that are being used for school to pay for the increased monthly expenses and for retirement. She contends that if she is forced to remove Amy from UTS this will have a devastating effect upon Amy.
[27] The respondent further argues that on the date of separation the applicant left abruptly and that this was traumatic for all members of the family. She contends that this is evidenced by the reunification counsellor, Diane Moody's letter of November 2012 that verifies that the children have considerable anger towards the applicant. The respondent submits that an order to sell the matrimonial home now could potentially traumatize the children further. The children are flourishing now and to order a sale may have a devastating effect upon them and their schooling.
[28] It is also the respondent's position that her employment as a supply teacher is dependent upon her living in close proximity to the schools where she works as she often receives phone calls from the principals and teachers at the last minute because they know that she can get to the schools quickly as she lives in the neighbourhood. She contends that she does not have contacts at schools in other areas and she is concerned that she will no longer receive these teaching positions which will dramatically affect her income. She submits that as the applicant suffers from Parkinson's, she may be solely responsible for supporting the children and she requires her income to support the family. She further submits that given that she may have this sole responsibility, she requires the applicant's equity in the home as security for support and she is seeking a vesting order at trial. It is her position that if an immediate sale of the home takes place, this will severely prejudiced her claims at trial.
[29] The respondent is seeking at trial that the applicant's interest in the matrimonial home be transferred to her and vested in her so that she can ensure that there are adequate funds for the applicant's share of child support and section 7 expenses in the future. She is concerned about the applicant's efforts to secure employment since his dismissal from IBM, his spending and the potential progression of his Parkinson's. It is the respondent's position that the issue of the sale of the matrimonial home and the respondent's claim for exclusive possession of the matrimonial home until June 2015, is best left for determination by the trial judge. She contends that a trial can be heard as early as January 20, 2014 and that the applicant will not be affected as he continues to live a comfortable lifestyle as evidenced by the spending on his credit card statements.
[30] The respondent also contends that the applicant has not provided adequate levels of support nor contributed to section 7 expenses since the date of separation. She submits that the letter provided by the applicant's doctor, Dr. Kalia, outlines that the applicant's Parkinson's is slowly progressive and there is no impact on his daily living yet the applicant has done nothing to secure employment. The respondent will be seeking to impute income to the applicant based on this factor and on the regular gifts she contends that the applicant receives from his father. The respondent submits that there is no guarantee that the children will have ongoing access to RESPs created by the applicant's father and she has no information regarding the amount of the RESPs as the applicant's father has not provided her with details and has prevented her from obtaining information directly from the RESP plan administrator. The applicant's concern is that she will be left with the sole responsibility of supporting the children on an ongoing basis and all of their section 7 expenses. This she contends is a major reason why she is seeking security for support at trial and that to order a sale of the home now will severely prejudice her claims at trial. It is the respondent's position that a sale of the home now only benefits the applicant and no other members of the family.
[31] The respondent further submits that her own real estate agent, who has been in the matrimonial home, unlike the applicant's realtor, states that the matrimonial home has a value of between $900,000 to $950,000, not $1.2 million. Additionally, the respondent contends that the encumbrances total approximately $129,000 not $120,000. As such, it is the respondent's position that the equity in the home for each party is approximately $350,000. She further contends that she cannot find a suitable home for that amount in the current area nor can she afford to pay rent of $3,500 per month. It is the respondent's position that there is no conceivable way that she will be able to afford appropriate accommodations in the same area to ensure that Adam is able to attend Glenview where he will have significant support for his educational needs and the ability to continue his schooling with his friends. The respondent submits that she will have to move away from the Toronto in order to afford appropriate accommodations.
[32] It is the respondent's position that with the assistance of two realtors, she has also completed an extensive review of listings in her current area. Some of these listings are out of her price range, some are too small, and some would result in a long commute to school for the children and take them away from their friends.
[33] The respondent also submits that the applicant's credit card statements submitted show a significant amount of spending by the applicant on himself prior to and after separation. The statements show trips to California, New York, London, Cobourg and Montreal and extravagant spending on fine restaurants. The respondent submits the applicant continues to live a very comfortable lifestyle and she disputes the applicant's submission that he is only using the credit cards to pay for legal fees as the statements show otherwise. The respondent further submits that in the applicant's pleadings he acknowledged that the monies received from his father were gifts but he now contends that the $150,000 is a loan. The respondent submits that regular gifts were provided to the applicant and the family on an ongoing basis.
The Law
Exclusive Possession
[34] Section 24(1) of the Family Law Act, R.S.O. 1990, c. F.3 provides that regardless of ownership of a matrimonial home and despite section 19 (which deals with a spouse's right of possession), a court may, by order, direct that one spouse be given exclusive possession of the matrimonial home and direct that the contents of the matrimonial home, or any part of them, remain in the home for the use of the spouse given possession. Section 24(2) provides that these orders may be made on a temporary or interim basis.
[35] Section 24(3) sets out what the court must consider for an order for exclusive possession:
Order for exclusive possession: criteria
(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. R.S.O. 1990, c. F.3, s. 24 (3).
Best interests of child
(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. R.S.O. 1990, c. F.3, s. 24 (4).
Sale of the Matrimonial Home
[36] Sections 2 and 3 of the Partition Act, R.S.O. c. P.4 provide as follows:
Who may be compelled to make partition or sale
- All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only. R.S.O. 1990, c. P.4, s. 2.
Who may bring action or make application for partition
- (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested. R.S.O. 1990, c. P.4, s. 3 (1).
[37] In Batler v. Batler (1988), 18 R.F.L. (3d) 211 (Ont. H.C.), Granger J. held that a joint tenant has a prima facie right to sale prior to trial. This right exists unless the other joint tenant has made claims that would be prejudiced if the property were sold.
[38] Granger J. held that a joint tenant was entitled to apply for partition and sale under the Partition Act, and Rule 20 of the Rules of Civil Procedure (which at that time was the rule that permitted summary judgment on all or part of a family claim). Granger J. stated that in order to successfully resist an application for sale, the responding party should have an order for interim exclusive possession, or be able to show that the claims he/she intends to put forward at trial will be prejudiced by an immediate sale.
[39] The Court of Appeal addressed this issue further in Silva v. Silva (1990), 30 R.F.L. (3d) 117, 75 D.L.R. (4th), 1 O.R. (3d) 436 (C.A.); and Martin v. Martin (1990), 31 R.F.L. (3d) 210 (Ont. Ct. Gen. Div.), aff’d at (1991), 34 R.F.L. (3d) 173 (Ont. Div. Ct.), rev’d in part at (1992), 38 R.F.L. (3d) 217 (Ont. C.A.). The Court recognized that a joint owner has a prima facie right to partition and sale; however, as stated by the Court in Silva at para. 23:
... where substantial rights in relation to jointly owned property are likely to be jeopardized by an order for partition and sale, an application under the Partition Act should be deferred until the matter is decided under the F.L.A. Putting it more broadly, an application under s. 2 should not proceed where it can be shown that it would prejudice the rights of either spouse under the F.L.A.
[40] In Martin, the Ontario Court of Appeal confirmed that the sale of the matrimonial home prior to trial should not be made as a matter of course at para. 26:
Although there is clear jurisdiction under the Partition Act to order the sale of the parties' matrimonial home, I do not wish to be taken to have endorsed the wholesale issuance of these orders. In my view, an order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act, 1986 issues (particularly the determination of the equalization payment), should not be made as a matter of course. See Binkley v. Binkley (1988), 14 R.F.L. (3d) 336 (Ont. C.A.). In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account.
Analysis
[41] For the following reasons, I am not prepared to order the immediate listing and sale of the matrimonial home and I am prepared to order that the respondent have exclusive possession of the matrimonial home pending a determination of these issues at trial.
[42] The case law is clear that while there is a prima facie entitlement to a sale of the matrimonial home by a joint owner, a sale should only be ordered where, in all of the circumstances, the order would be appropriate. Additionally, there must be no prejudice to the other spouse’s claims and where there is a risk of prejudice to the other spouse’s claims, the matters are best determined at trial.
[43] The respondent has made claims for security for support and for a vesting order. Additionally, she has made a claim for exclusive possession of the matrimonial home. Counsel for the respondent submits that the respondent will be seeking exclusive possession of the matrimonial home at trial until 2015 when the youngest child, Adam, will have completed his French Immersion program in grade 8 and Amy will have completed her studies at UTS and will be heading to university. If the sale of the matrimonial home was to be ordered now, I find that the respondent's claims for exclusive possession of the matrimonial home along with her claims for security for support and a vesting order will be prejudiced.
[44] I do not accept the argument of applicant's counsel that upon the sale of the matrimonial home the fact that the applicant will be purchasing another home will provide an opportunity for security for support. That factor does not provide security for the respondent in that there is no guarantee that the applicant will purchase a home nor is there any suggestion by the applicant that he would secure his home for the purposes of support until the determination at trial. The respondent would not have any control over how the applicant spends his one-half of the proceeds from the sale of the matrimonial home if a sale were to take place prior to trial.
[45] While I acknowledge that the applicant has a serious medical condition, I find that it is in the best interests of the children that a sale not be ordered at this time. The respondent and the children have been residing in the home for over two years and a trial can take place in early 2014. There is no expert evidence before the Court at this time indicating that the applicant is unable to work although there appears to be acceptance by the respondent that the applicant's medical condition may worsen. There is much more evidence that is required with respect to the applicant's medical condition and whether he has been able to work or will be able to work in the future. If he is able to work, evidence is required as to what efforts the applicant has made to obtain work since his loss of employment and what his obligations are to contribute to the support of the children. It is the respondent's position that since separation the applicant has paid inadequate levels of child support and has not contributed to section 7 expenses.
[46] The respondent contends that she requires security for support given the applicant's medical condition and his unemployment. This is certainly an issue that needs to be fully canvassed at trial. If the applicant is unable to work due to his health concerns he may not have a child support obligation; however, it is extremely difficult to determine this issue on a motion without expert medical evidence tested by cross-examination.
[47] There is also much conflicting evidence before the Court as to whether the funds received by the applicant from his father since the date of separation are to be construed as gifts or loans. The relevance to this issue with respect to the sale of the matrimonial home is that the respondent takes the position that these gifts continue and that the applicant will continue to receive funds from his father pending trial when all of the issues will be fully canvassed and determined by the Court. There are some questions with respect to the applicant's spending patterns since separation and the use of the $150,000 that he contends was loaned to him from his father. The applicant acknowledged that a number of these expenses related to his costs for eating at restaurants, to pay for ongoing living expenses and for purchase of some furniture, but little was said in submissions by the applicant's counsel with respect to the monies used for travel by the applicant. Again, the only relevance of this evidence with respect to the issues on these motions is whether the Court perceives that the applicant is in a desperate financial situation or that he will have adequate funds for the next six months prior to trial when a full determination of all issues will take place.
[48] There appears to be some history of the applicant's father assisting him. It is certainly not incumbent upon the applicant's father to support the applicant or the children. However, in weighing the prejudice to the applicant in delaying the determination of the sale of the matrimonial home until trial and considering the applicant's ability to support himself during the period until trial against the prejudice that an immediate sale may cause to the respondent if the matrimonial home is sold now, I conclude at this stage that more prejudice will result to the respondent's claims at trial; in fact many of those claims would be extinguished if the sale of the matrimonial home was ordered now which may not be in the best interests of the children. It may be that a sale of the matrimonial home is ordered at trial, but it is difficult to reach such a conclusion at this stage given the conflicting evidence and the issues that need to be determined concerning the applicant's health, his income and ability to work, his child support obligation, the ongoing educational expenses of the children and the respondent's requests for security for support and a vesting order.
[49] In determining whether to grant the respondent an interim order for exclusive possession, I have considered the best interests of the children and the possible disruptive effect on the children of a move. I am concerned that the sale of the matrimonial home now may result in unnecessary disruption to the children and may affect them detrimentally. The children have not seen their father for over two years. Reunification counselling was proceeding with Ms. Moody and it has been unsuccessful in reuniting the children with their father. Additional counselling with another counsellor is being arranged by the parties. I acknowledge that the applicant has raised concerns with respect to parental alienation by the respondent and has brought a motion for contempt against the respondent with respect to this issue. However caused, it is apparent that there is an estrangement between the applicant and the children.
[50] There is no question that the children have had to deal with the separation of their parents and they have struggled in their relationship with the applicant. This is not a normal situation where there has been a separation between the parties and regular time-sharing is taking place between the children and both parents. Throughout this turmoil the children appear to have excelled in school. At this stage it is important for the children, in particular Amy and Adam, that they maintain stability with their schooling, that they remain in the neighborhood with their friends and the issue of exclusive possession post-trial be fully determined at trial to properly determine what is in their best interests. I am concerned about the impact of a move upon Adam in particular as he has already enrolled in a new school which appears to be beneficial to him, according to his teacher, based on class size and his needs. He will also be able to continue at school with his close friends who I understand will be going to the same school. This is clearly a benefit to him and provides him with stability.
[51] I have also considered the financial positions of both parties, including the applicant's lack of employment and his evidence that he owes a substantial amount of debt, mainly to his father. Neither party is of significant means and both have relied substantially on their own parents for assistance. There is conflicting evidence before the Court as to whether there are affordable alternative accommodations for the respondent and the children in the same area where they reside or whether the respondent will be forced to relocate outside of the area or the City of Toronto to find reasonable accommodations if the home is sold. This may result in significant changes to the children's schooling.
[52] There is also conflicting evidence as to whether the respondent has actively sought alternate accommodations or visited potential new homes/rental accommodations. The applicant states that the respondent has not made efforts to search for alternate accommodations while the respondent states that she has searched and that the accommodations are either inappropriate or unaffordable. This will also need to be fully canvassed at trial. The respondent submits that a move may also affect her employment as a supply teacher which argument I find less compelling given the respondent has a vehicle and can drive to the various schools that she is regularly called upon to assist. However, all of these issues will need to be determined at trial.
[53] The evidence before the Court now is that the respondent is able to afford the reasonable monthly expenses associated with the matrimonial home. She requested that the applicant re-amortize the mortgage which would have reduced the mortgage payments to approximately $650.00 per month, but the applicant refused. It is the respondent's position that if the matrimonial home is sold now she will have to use her equity to pay for higher expenses at new accommodations. She contends that she will be forced to use her capital. She submits that she has already had to do so given the minimal child support paid as she has depleted her RRSPs.
[54] All of these facts and issues need to be explored and determined at trial. The presiding Judge will have the benefit at trial of hearing viva voce evidence from numerous witnesses and the parties will have the benefit of cross-examination. On these motions, I have only highly conflicting evidence that has been untested by cross-examination. This matter needs to progress quickly to trial and a trial should be scheduled as soon as possible. A settlement conference has been scheduled for August and at the settlement conference the setting of a trial date should be discussed.
Order
[55] I order the following:
on consent, the issue of custody of the children Amy Freeman, born February 8, 1997, and Adam Freeman, born March 21, 2001, is to be adjourned to trial. Pending trial Amy and Adam's primary residence shall remain with the respondent;
on consent, the applicant shall have access with Amy and Adam subject to their views and preferences and he shall continue to have telephone access with Adam pursuant to the order of Czutrin J. dated April 5, 2013;
on consent, the parties shall attend for questioning on mutually available dates no later than September 30, 2013;
on consent, the parties shall arrange for the continuation of reunification counselling between the applicant and the children with a new mutually agreeable counsellor;
the respondent shall have interim exclusive possession of the matrimonial home, municipally known as 168 St. Germain Avenue, Toronto Ontario pending a determination of the issue at trial;
the applicant's motion for the sale of the matrimonial home is dismissed;
the remainder of the relief claimed by the parties on these motions shall be adjourned to a date to be fixed;
the parties shall attend at a settlement conference on August 21, 2013 where the setting of a trial date as soon as possible shall be discussed;
I urge the parties to agree on costs; however, if the parties are unable to agree, any party seeking costs shall do so by filing written costs submissions, not to exceed two double-spaced pages within 20 days, along with a Bill of Costs and any Offers to Settle. A party wishing to respond shall do so by filing written costs submissions, not to exceed two double-spaced pages, 14 days thereafter.
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Stevenson J.
DATE: July 24, 2013