Evleen Yonathan v. Nashat Matrook, 2013 ONSC 937

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-12-3092-00
DATE: 2013-02-08

RE: Evleen Yonathan v. Nashat Matrook

BEFORE: Tzimas, J.

COUNSEL:
Jennifer A. Treloar, for the Applicant

Frances M. Wood, for the Respondent

ENDORSEMENT

1There were two motions before this court. The first motion was brought by the Respondent, Nashat Matrook for, among other things, a restraining order against the Applicant, Evleen Yonathan. The second motion was brought by Evleen Yonathan against Nashat Matrook for interim spousal support.

2Nashat and Evleen were in a relationship from some time in 1999 until this past July. The description of their relationship varies dramatically as between the two individuals and should ultimately be the subject of a trial. Nashat suggests that the relationship was a casual one, with Evleen coming and going over the years. Evleen says that they had a common law relationship, that they lived together at 6406 Saratoga Way,(city?) and that the reason they did not get married was because her family was opposed to the idea of a marriage. The property at 6406 was purchased by Nashat but Evleen asserts a constructive trust interest.

3What appear to be accepted by both parties are the following facts: marriage bands and an engagement ring were ordered in 2001; the couple were planning a wedding in Jordan; and in 2006, Evleen miscarried a baby boy at 21 weeks.

4Thereafter, she suffered from severe depression and she has since been diagnosed with a bipolar disorder. Since 2006 and the loss of her baby, Evleen has had multiple crises that have required both police intervention (in some instances) and hospitalization. Nashat, in all of these instances, has been described in Evleen’s hospital and police records as her partner, with adjectives ranging from “husband”, “fiancé”, or “boyfriend”. Whether or not he actually identified himself as such to the authorities and to the various medical practitioners, his conduct suggested at all times that he was her partner. The couple were also to undergo fertility treatments, although the evidence on these motions was insufficient to understand whether, in fact, they went ahead with them.

5With respect to the Saratoga residence, Evleen’s evidence is that she considered the Saratoga residence to be her home. There are significant differences between the two parties as to whether Evleen resided at Saratoga or whether she would “come and go” as suggested by Nashat. But there was agreement over the fact that Evleen paid some of the utility bills, that she purchased furniture for the place, as well as drapes and broadloom, all with Nashat’s knowledge.

a) Motion for a Restraining Order by Nashat against Evleen

6Nashat seeks a restraining order as against Evleen as well as an order requiring her to vacate the premises located at 6406 Saratoga Way. First, and perhaps foremost, he is the owner of the said property. He was forced to leave the property in July 2012 after Evleen obtained a certificate of pending litigation on an ex parte basis. Nashat brought his motion also on an ex parte basis, ostensibly over the concern that, if Evleen were given notice, it might trigger a violent episode by her that might harm both Nashat and result in damages to the house. In the same vein, Nashat seeks a restraining order because with every episode that she suffers Evleen is becoming more violent and threatening. At least a couple of the episodes have required police intervention. Nashat says that he fears for his personal safety. In November, Evleen changed the locks so, as a practical matter, Nashat cannot return to his own home.

7Even if Evleen is able to establish a construct trust interest in the property, she has no right to possession, much less exclusive possession. It is more likely than not that, eventually, she will have to move out of the Saratoga property. However, her particular circumstances require some caution, at least until there is a determination over the extent and the nature of the alleged interest. Evleen’s primary response is that she has nowhere else to live apart from the Saratoga property. Her personal belongings are all located at that property. Although Nashat points to a residential property located in Hamilton that Evleen is said to own with her siblings and could seek out a residence there, Evleen responds that the property is tenanted and that she could not stay there. In contrast, even though it poses an inconvenience to Nashat, he has been able to stay with friends and family and, more importantly, he travels a fair bit so that, for a very short term, he would not face the kind of difficult situation that Evleen is said to face. Counsel for Evleen suggests that the most practical approach would be to expedite a trial and have an overall reconciliation between the subject of spousal support and the property interests of Saratoga Way.

b) Motion for interim support by Nashat of Evleen

8In response to the motion for a restraining order, Evleen has brought a motion seeking interim spousal support. She claims that the relationship between her and Nashat has been such that they lived in a continuous common law relationship for three years. Furthermore, her needs are said to be such that they warrant an interim order for spousal support, even if that means that there may very well be a re-adjustment of the appropriate support figures at trial. Even with some outstanding questions concerning the couple’s interactions between them, the evidence tips in favour of an inference of a common law relationship. Nashat may have a number of reasons for wishing to put a distance between himself and Evleen. However, for a number of years, the evidence, at least on this motion, does not support a conclusion that the relationship was merely a casual friendship.

Analysis

9Even without the concession by counsel that an expedited trial would be a practical outcome for both motions, that, in fact, is what required. Each motion, on its face appears to be meritorious. It is an extraordinary situation for Nashat to own a property and to be locked out of it by somebody who does not have a right of possession or, in any event, does not have an exclusive right of possession. It is perhaps no accident that Evleen has not brought her own motion for exclusive possession. At the same time, the facts before this court, at least to this date, suggest that Evleen and Nashat were in a common law relationship and would satisfy the requirements of the law on this point.

10However, beyond this very basic assessment, I am mindful of the submissions by counsel for both parties that there are significant facts in dispute. Cross-examinations were completed only on January 29, 2013 and, even up until the date of the hearing of these motions, Evleen’s transcript of her cross-examination was not available to the court. Undertakings on very material issues remain outstanding and significant work remains to be completed to support the quantum of spousal support. Illustrative of the diametrically opposing evidence as between the parties is that which concerns Evleen’s own income. The proposed spousal support figures range from a low of $386.00 to a high of $1,143.00.

11Under the circumstances, and in light of the concession by Evleen’s counsel that a practical result might be to preserve the status quo and to set the matter down for an expedited trial, I order as follows:

1. This matter is to be scheduled for trial for the May 2013 blitz. Counsel for both parties estimate a trial of six to eight days, based on the length of time that was required for the cross-examinations. It is noted that English is not the first language for either party and that this, in part, explains the proposed length of time.

2. In light of Evleen’s arguable case in support of a common law relationship with Nashat, Evleen’s continued occupation of the Saratoga property is to be treated to be in lieu of an interim order for spousal support. This is without prejudice to a full assessment of the subject of such entitlement as well as the quantum of such support as might be determined at trial.

3. Although no formal restraining order is warranted at this time, Evleen and Nashat are to refrain from having any communications with each other so as to avoid the triggering of any episodes. Any and all communications that might be required in relation to the Saratoga property between the date of this Order and the date of trial is to occur through their respective counsel.

4. There are no costs for either of the two motions.

Tzimas, J.