Court File and Parties

COURT FILE NO.: FD1103/13 DATE: October 25, 2013 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Leonard Lee James Campbell, applicant AND: Kim Karmen Campbell, respondent

BEFORE: MITROW J.

COUNSEL: Mr. Mark Coulston, for the applicant Mr. Robert Haas, for the respondent

HEARD: October 16, 2013

ENDORSEMENT

INTRODUCTION

[1] Each party brings a motion. The contested issues raised in the motions can be described as follows:

a. Each party asks the court to set a schedule of parental care of the children pending further order of the court; and

b. The respondent seeks interim exclusive possession of the matrimonial home and contents, or alternatively immediate sale of the matrimonial home.

[2] The parties have now agreed to list the matrimonial home for sale and the order below reflects that agreement.

[3] The respondent’s motion was served prior to a case conference. Both parties however agree that the attendance before Templeton J. on October 2, 2013 and her order made that day constitutes a case conference.

[4] The applicant Leonard Lee James Campbell (“Mr. Campbell”) and the respondent Kim Karmen Campbell (“Ms. Campbell”) were married to each other in 2000 and separated in 2012. Mr. Campbell states that the date of separation is October 31, 2012 and Ms. Campbell disagrees stating that the date of separation is August 15, 2012. For the purpose of the motions nothing turns on the disagreement as to the date of separation.

[5] The parties have two children: Alyssa age 11 (born December 10, 2001) and Liam, age 7 (born December 19, 2005). Since separation the parties have continued to reside separate and apart in the matrimonial home.

[6] Templeton J. made an order on October 2, 2013 for the appointment of the children’s lawyer. When the motions were argued it was not yet known whether the children’s lawyer had accepted the case.

[7] Both parties are in agreement for the children to have counselling with Martin Bach - in fact Ms. Campbell specifically asks for that order in her motion. Apparently the parties signed an agreement for counselling with Mr. Bach but that agreement has not been filed in the motion material. The apparent primary unresolved issue regarding Mr. Bach is the payment of the counselling expenses. Ms. Campbell recently lost her employment. She is apparently negotiating a severance package but no details have been provided by Ms. Campbell. It is unclear whether she may have other access to benefits to offset some of the counselling expenses. The order below does provide for counselling with Mr. Bach and apportionment of this expense.

EXCLUSIVE POSSESSION OF THE MATRIMONIAL HOME AND CONTENTS

[8] For reasons discussed below, Ms. Campbell’s claim for interim exclusive possession of the matrimonial home and contents is dismissed.

[9] The affidavit material is substantially in conflict. Ms. Campbell deposes that the matrimonial home has a toxic atmosphere, blaming Mr. Campbell. Ms. Campbell also deposes that Mr. Campbell has a conflictual relationship with Liam. She points to a note left by Liam in January 2013 stating “you will di daddy” (the word “di” meaning “die”).

[10] Mr. Campbell deposes that Liam can fly into a rage when he is angry. While Mr. Campbell agrees that Liam has directed some anger at him, Mr. Campbell also states that Liam has channeled his anger at others including Ms. Campbell and Alyssa. Mr. Campbell lists numerous examples of Liam’s anger outbursts (see paragraph 32 of his affidavit sworn October 7, 2013), where Mr. Campbell’s allegations include that Liam has screamed at both Alyssa and the respondent saying that his sister will die and that he wants his mother to die.

[11] Much of Ms. Campbell’s evidence in support of her request for interim exclusive possession centred around her position that it was in the children’s best interest to remove Mr. Campbell from the matrimonial home. However, a number of occurrences relied on by Ms. Campbell occurred a year or more ago, and Mr. Campbell has given a conflicting version of those events. Some events relied on by Ms. Campbell, for example, Liam being upset at his father because of how his father carved a Halloween pumpkin in October 2012, are simply overblown and not capable of supporting an order for interim exclusive possession.

[12] It was Ms. Campbell’s evidence that she began taking the children to a family counsellor, Dr. Meek in September 2012. However, there was no evidence provided by Dr. Meek. Ms. Campbell submitted this was because Dr. Meek was not jointly retained. I do not agree that this is a valid reason. Surely, if there was some material and relevant evidence from Dr. Meek to support Ms. Campbell’s position, then it should have been provided. The inference can be drawn that there was no material evidence that Dr. Meek could have provided to support Ms. Campbell’s position. I do agree that where a counsellor is chosen by one parent, that that may affect the weight to be ascribed to the counsellor’s evidence - however that issue can be decided by the court in the context of all the evidence. In cases such as the present case, where there is substantial conflicting evidence, particularly on a motion for temporary custody or access, independent evidence from a counsellor or therapist, even if he or she is not jointly selected, may still be of assistance to the court.

[13] There was evidence from Ms. Campbell that she was concerned about some physical interaction between Mr. Campbell and Alyssa that Ms. Campbell witnessed in January 2013. Mr. Campbell described this occurrence as “horseplay”. Eventually police and Children’s Aid were involved but no charges were laid and Children’s Aid closed its file. No protection concerns were substantiated. However, Ms. Campbell deposes that the Society recommended that Mr. Campbell take a parenting course – Mr. Campbell in fact did so, taking a course at Merrymount Children’s Centre from April 2013 to June 2013.

[14] Ms. Campbell refers to an incident over a year ago alleging verbal abuse by Mr. Campbell (alleging he called her “bitch” and “whore”) and further that Mr. Campbell threw a laptop at her. Mr. Campbell denies these allegations although he does agree that he called Ms. Campbell a “bitch”, but adds that she called him an “asshole”. In a later reply affidavit, Ms. Campbell admits that she “may have called him an asshole”, but I would note that that admission is conveniently absent from her initial recitation of the facts.

[15] I have considered the factors in subsections 24(3)(a) to (f) of the Family Law Act, R.S.O. 1990, c. F.3 in deciding whether an order for interim exclusive possession of the matrimonial home and contents should be made. Presumptively, each party has an equal right to exclusive possession of the matrimonial home: s. 19 Family Law Act.

[16] Subsection 3(d) (written agreement) does not apply, however subsection 3(b), dealing with existing orders, is relevant as I am making an order for the sale of the matrimonial home. Accordingly there is an expectation that both parties, sooner rather than later, will be moving to alternate separate accommodation. Also, Templeton J. ordered that each party start looking for accommodations or put forward a proposal to purchase the other party’s interest in the matrimonial home. Each party can still offer to purchase the other’s interest if he or she desires.

[17] As to the financial position of the parties (subsection 3(c)), Ms. Campbell is currently unemployed and Mr. Campbell earns approximately $32,000 annually according to his financial statement. As to subsection 3(e), neither party can afford alternate accommodation while the matrimonial home remains unsold. It is not realistic for Mr. Campbell to move in with family members as suggested by Ms. Campbell.

[18] The issue of the best interests of the children (subsection 3(a)) and violence against a spouse or children (subsection 3(f)) were the main issues argued. The conflicting evidence suggests that Liam has anger issues and that his anger is directed at various people, not just Mr. Campbell. There is insufficient evidence to find that it is in the children’s best interest to award interim exclusive possession of the matrimonial home to Ms. Campbell. The evidence as to violence is also conflicted and insufficient to justify such an order.

[19] While it may be in Ms. Campbell’s best interests to have exclusive possession of the matrimonial home, the test is what is in the best interests of the children, not what is in the best interest of Ms. Campbell: see Gredig v. Dennis, [2012] ONSC 5223.

[20] Ms. Campbell’s complaints include the allegation that an inappropriate email about Ms. Campbell was sent by a friend of Mr. Campbell’s. That conduct is more properly considered below in relation to custody and access issues.

PARENTING SCHEDULE – CUSTODY AND ACCESS

[21] At this early stage in the proceeding (the application was issued July 30, 2013) it is appropriate that an order dealing with custody or access matters be made on an interim interim basis. At this time Ms. Campbell is not employed – hopefully that will change soon and, if it does, her work schedule may require some fine-tuning to the order. Also, relevant evidence may become available from Mr. Bach’s involvement in this matter or from the Children’s Lawyer if the Children’s Lawyer elects to become involved.

[22] The evidence does disclose that each party has participated actively throughout the years in parenting and caring for the children. Ms. Campbell deposes that she has always been the children’s primary caregiver but Mr. Campbell disputes this.

[23] On a motion for interim custody, the status quo of children should not be disturbed in the absence of compelling reasons indicative of the necessity of a change to meet the children’s best interests: see Grant v. Turgeon, 2000 22565 (ON SC), [2000] O.J. 970 (S.C.J.) at para. 15, Kimpton v. Kimpton, [2002] O.J. No. 5367 (S.C.J.) at paras. 1-2, and Curie v. Maudsley, 2011 CarswellOnt 6705 (S.C.J.) at paras. 15-17.

[24] Each party, in his or her material has proposed a parenting schedule. Mr. Campbell has also proposed a separate schedule to take effect after the sale of the matrimonial home.

[25] This is a divorce action as both parties seek a divorce. The provisions of subsections 16(8), (9) and (10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1] are relevant and provide as follows:

16(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[26] In considering the best interests of the children a parent’s ability to promote and facilitate a positive relationship with the other parent is a relevant factor.

[27] The evidence is clear that Mr. Campbell is angry at Ms. Campbell because of his allegation of her infidelity that she denies. Ms. Campbell complains that Mr. Campbell got a friend of his to send an email, which is attached as an exhibit to Ms. Campbell’s affidavit, to a radio station where Ms. Campbell had a weekly talk show. This email is malicious and seeks to embarrass Ms. Campbell by referring to her alleged infidelity with a person named in the email.

[28] It is Mr. Campbell’s evidence that he was not previously aware of his friend’s actions (his friend being one Mr. Murphy) and he did not request or authorize Mr. Murphy to send the email. I find that evidence quite unbelievable. No rational explanation is given by Mr. Campbell as to why Mr. Murphy would do such a thing, absent encouragement from his friend, Mr. Campbell. Importantly there is no affidavit from Mr. Murphy explaining his conduct.

[29] I do have a concern about Mr. Campbell’s negative view of Ms. Campbell and his ability to shield the children from his negative image of her.

[30] In relation to status quo, the evidence as a whole does support a finding that there is no aspect of the children’s lives that Ms. Campbell was not involved in. Mr. Campbell does concede that Ms. Campbell often made the arrangements regarding schedules for parent-teacher meetings and arranging before and after school care. He also agreed that Ms. Campbell usually organized the children’s birthday parties. Mr. Campbell complains that Ms. Campbell, since separation, has excluded him from various events and activities of the children including, for example, the 2012 Christmas pageant, among other specific examples. I find it somewhat difficult to accept this as a legitimate complaint. If Mr. Campbell had as much involvement in the children’s daily lives as he claims, then the information (that he complains he was not aware of) would most likely have been known to him. The totality of the evidence is much more consistent with the situation where Ms. Campbell was the parent involved in all aspects of the children’s lives, and that Mr. Campbell was content with this although he too had regular and ongoing involvement with the children.

[31] I find, at this interim interim stage, that it is in the children’s best interests that the children have primary residence with Ms. Campbell, but that Mr. Campbell should have generous time with the children. It is also in the children’s best interests that the parties have interim interim joint custody of the children.

[32] The schedule set out below takes into account that Ms. Campbell and the children (but not Mr. Campbell) attend church regularly on Sundays. Ms. Campbell and the children are practicing Catholics. Alyssa is in the church choir. The schedule below also reflects that Mr. Campbell has Mondays off and that he works Saturday mornings.

[33] On a practical basis, while the parties both continue to reside in the matrimonial home, each party will have contact with the children while the children are in the other party’s care in accordance with the order below. In these circumstances, it is expected that each party will cooperate in permitting the other party to interact with the children. Further, each party is at liberty to move from the matrimonial home, if he or she wishes, prior to the sale. In particular, Ms. Campbell is at liberty to move with the children to a new residence at any time before sale of the matrimonial home.

ORDER

[34] The order shall incorporate the provisions set out below.

[35] Ms. Campbell’s motion for interim exclusive possession of the matrimonial home and contents is dismissed.

[36] The matrimonial home shall be listed for sale forthwith. Either party may seek directions if there is a dispute as to any aspect of the listing and sale of the matrimonial home.

[37] On an interim interim basis pursuant to the Divorce Act:

a. The parties shall have joint custody of the children Alyssa and Liam;

b. The children’s primary place of residence shall be with Ms. Campbell;

c. For the current school year, there shall be no change in the children’s school unless ordered by the court or agreed to by the parties;

d. The children shall be in the care and control of Mr. Campbell as follows:

i. Every week from 2:00 p.m. Sunday to 7:00 p.m. Tuesday and from 6:30 p.m. to 8:30 p.m. on Thursday;

ii. Every second weekend starting November 2, 2013 from 4:00 p.m. Saturday to Sunday morning one hour prior to church;

iii. Such other times as agreed to by the parties.

e. The children shall be in the care and control of Ms. Campbell at all other times;

f. The children’s principal place of residence shall not be changed from London Ontario unless ordered by the court;

g. While the parties continue to reside together in the matrimonial home, each party, while having care and control of the children in accordance with this order, shall act reasonably in permitting the other party to interact with and spend time with the children;

h. If a party is scheduled to have the children with him or her, and is not available, then the other party shall be asked to care for the children if he or she is available, before any other child care arrangements are made;

i. Each party is at liberty, on providing at least 14 days written notice to the other, to vacate the matrimonial home prior to sale. If Ms. Campbell vacates the matrimonial home, then the children shall accompany her to her new residence. If Mr. Campbell vacates the matrimonial home, then he is entitled to exercise his time with the children at his new residence. If either or both parties vacate the matrimonial home prior to sale, then they shall agree on maintaining the mortgage and other expenses of the matrimonial home pending sale, failing which a motion may be brought;

j. During the children’s Christmas holidays from school in the current school year, the children shall spend equal time with each party with the schedule to be agreed to by the parties, failing which a motion may be brought;

k. Each party shall have reasonable telephone access to the children while the children are in the care of the other party.

[38] The children shall attend counselling with Martin Bach and the counselling expenses that are not covered by any employer plans that the parties may have shall be shared equally by the parties subject to reapportionment by the court.

[39] Each party is prohibited from making any negative or disparaging comments about the other party to the children or in the presence of the children.

[40] If the parties cannot agree on costs, then written costs submissions shall be forwarded to the trial coordinator. Ms. Campbell shall forward her submissions within 14 days, Mr. Campbell shall forward his responding submissions within 14 days thereafter and the reply, if any, shall be forwarded within 7 days thereafter. The initial written submissions of each party shall be limited to three typed pages plus copies of any offers, time dockets, accounts and authorities, and the reply shall be limited to two typed pages.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: October 25, 2013