SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FC-11-039619

DATE: 20130211

RE: GINA MENCHELLA, Applicant

AND:

ANTHONY MENCHELLA, Respondent

BEFORE: GILMORE J.

COUNSEL: Harold Niman and Daniel Bernstein, Counsel for the Applicant

Gary Joseph and Kristy Maurina, Counsel for the Respondent

Michael Polisuk, Counsel for the child Alexia Menchella

HEARD: November 27, 2012 and January 22, 2013

ENDORSEMENT ON MOTION FOR LEAVE TO APPEAL

OVERVIEW

[1] This matter came before me first on November 27, 2012, by way of a motion for leave to appeal the Order of McGee J. dated November 6, 2012. Counsel for the child took no position on that date although a disclosure meeting with the social worker and Mr. Polisuk on the child-related issues was scheduled for mid December 2012.

[2] Given the proximity of the disclosure meeting, I stayed McGee J.’s order giving exclusive possession to the Respondent (hereinafter “the wife”) and requested that an affidavit be provided by the assigned social worker from the Office of the Children’s Lawyer relating any information she could provide to the court on the child’s views and preferences. Justice McGee did not have that information before her. Given the considerations in section 24(3)(a) of the Family Law Act, R.S.O. 1990, c. F.3 this court felt it would be of assistance to have information concerning the child given the tenor of the text messages that were the basis of Justice McGee’s decision and in relation to how long a stay of the order should remain in place. My interim ruling in this regard was released on November 29, 2012.

[3] An affidavit from the Social Worker, Ms. Karen Guthrie-Douse, was served and filed on January 10, 2012. The parties were given leave to file a further affidavit related to Ms. Guthrie-Douse’s affidavit and provided further brief submissions on January 22, 2012. The stay of Justice McGee’s order remains in place pending the release of this decision.

[4] The Appellant husband (hereinafter “the husband”) seeks leave to appeal the order of McGee J. dated November 6, 2012, and any associated costs order. The November 6, 2012 order granted exclusive possession of the matrimonial home at 111 Forrest Heights Road, Kleinburg, Ontario to the wife effective December 1, 2012. The stay was extended to the date of release of this order by my order of November 29, 2012.

[5] The husband takes the position that McGee J. misapprehended the evidence in finding that certain text messages sent by the husband to the wife amounted to “violence” pursuant to section 24(3)(f) of the Family Law Act. Further, the husband submits that in reaching her conclusion, McGee J. misapplied the proper legal principles, made conclusions not supported by the evidence and that numerous decisions conflict with her order. As such, leave to appeal should be granted.

[6] The wife submits that leave should not be granted because the husband is in arrears of support and therefore in breach of McGee J.’s order dated March 21, 2012. Further, the order of November 6, 2012, was a discretionary one and as such if that decision conflicts with others on similar points it is an exercise of her discretion as opposed to a “conflicting decision.” According to the wife, Justice McGee carefully reviewed the relevant facts and legal principles and a conclusion that the husband’s vitriolic texts constitute “violence” is consistent with the evidence.

[7] It should be noted that McGee J. indicated in her November 2012 decision that if she was wrong in concluding that the text messages constituted violence then she found that it was no longer in Alexia’s best interests for her parents to reside together. The wife submits that even without input from Alexia’s counsel (as her counsel took no position on the October 2012 motion) McGee J. was correct in relying on Alexia’s best interests as an alternate reason for her order as there was evidence from the wife of the anxiety and stress which Alexia was experiencing as a result of the parties continued shared residence in the home while separated.

BACKGROUND AND SUMMARY OF THE FACTS

[8] The parties were married for 15 years. They have one child, Alexia Rose Menchella, who is now 13 years of age. The parties have been residing in the matrimonial home since the date of separation on October 10, 2011. The matrimonial home is registered in the wife’s name. A marriage contract prevents the husband from seeking any interest in the home by way of equalization where the home was purchased with funds inherited by the wife. Part of the husband’s claim in the main application is to set aside that contract.

[9] In March 2012 the wife brought a motion for exclusive possession. The motion was heard by McGee J. At that time, the wife complained that the husband’s continued occupation of the home was intolerable. Further, the stress of the circumstances was causing Alexia to have nightmares and extreme anxiety. The court refused the wife’s motion and found there was nothing to link Alexia’s stress to the situation in the home. As well, there was no independent evidence of Alexia’s views and preferences. McGee J. found at that time that the wife had failed to meet the criteria under section 24(3) of the Family Law Act and denied the wife’s request for exclusive possession.

[10] In October 2012 the wife returned to court and requested the same relief. The same allegations were made by the wife as in her affidavit sworn February 13, 2012, however, in addition the wife attached text messages from the husband which were sent to the wife between September 28 and October 5, 2012, and requested that the texts be considered as resolving the prior conflict in evidence and be considered as “violence” under section 24(3)(f) of the Family Law Act.

[11] Justice McGee reviewed the text messages and the related law in her decision. Without reviewing all of them, some of the more vitriolic texts read as follows:

Mother: Why can’t you be a father? Everyone thinks your (sp.) pathetic, you haven’t watched your daughter ever.

Father: Lol….you don’t work…and you fuck off to meet your boyfriend…and you dump your daughter on everyone else! Pathetic???? You should hear what everyone is saying how disgusting you are! You have been and are a pathetic drunk and drug user of a mother. I will have no mercy on you this time! Can’t wait for court this time! It’s going to be fun making you crumble for everyone you have hurt!

You are pathetic and everyone here is disgusted in you as a mother!

You even abused the cat.

(Later, as the Mother does not respond)

Father: You don’t deserve to have Alexia.

Father: I will do everything into (sp.) power to take her away from you legally! You are so sick!

[12] There were other texts of a similar nature which are produced in Justice McGee’s decision. The wife argued that these texts resulted in her being in a constant state of anxiety; she was never sure when she would next be the target of the husband’s rage. The husband contritely submitted that he was uncharacteristically ill-tempered during the exchanges, that they were written over a short period of time and that they would not happen again.

[13] McGee J. found that the totality of the texts constituted “violence” under section 24(3)(f) of the Family Law Act. She found there could be no doubt about their meaning or intention and that they were threatening, intimidating and that they “resolved some of the prior conflict in evidence and provide a rich context for the parties’ relationship dynamic.” She ordered that the wife have exclusive possession as of December 1, 2012.

[14] It should be noted that the parties acknowledged and agreed that Alexia had not seen any of the texts that were the subject of the motion.

[15] As part of the relief claimed in the motion, the wife sought to have the husband’s pleadings struck for failure to provide certain previously ordered financial information and support. There was insufficient time to hear this part of the motion, but McGee J. accepted the evidence of the husband’s attempts to honour his support obligations. She therefore allowed the husband to bring a motion to vary the March 21, 2012 order and allowed the wife to refresh her motion to strike after a settlement conference was held.

[16] The court received the affidavit of Karen Guthrie-Douse, a social worker assigned to assist Mr. Polisuk. Ms. Guthrie-Douse had two meetings with Alexia, one meeting with each of the parties, one meeting with each of the parties and Alexia in the home, and one meeting with Daniel Menchella aged 30, the husband’s son from a previous marriage. These meetings were held in October and December 2012. A disclosure meeting was held with all parties and counsel on December 18, 2012.

[17] In the affidavit, Ms. Guthrie-Douse reports that Alexia told her she wished to reside with her mother and would prefer if her father moved out because at times he will cause “a commotion” with her mother. When asked for an example of this, Alexia stated that her father started an argument with her mother about legal bills.

[18] Alexia told Ms. Guthrie-Douse that her father does not spend much time with her although that is not much different from when her parents were not separated.

[19] The husband’s son Daniel (with whom Alexia has a good relationship) stated to the social worker that he thinks it is “bad” for his father and step mother to remain living together and that he has heard them yelling in Alexia’s presence.

[20] While the affidavit of Ms. Guthrie-Douse does not form part of the consideration on a motion for leave to appeal, it was felt by this court that some information about the child would be of assistance in determining the urgency of this matter and how long a stay of McGee J.’s order could be imposed without affecting the child’s best interests.

ANALYSIS AND THE LAW

[21] Pursuant to Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, leave to appeal shall not be granted unless,

a) There is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

b) There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

Are There Conflicting Decisions?

[22] The husband submits that there are many decisions which conflict with that of Justice McGee, including the ones she relied upon in her decision of November 6, 2012.

[23] Justice McGee relied on Hill v. Hill, (1987) 1987 8348 (ON SC), 10 R.F.L. (3d) 225 (Ont. Dist. Ct.) for the proposition that,

Violence, in my view, includes psychological assault upon the sensibilities of the other spouse to a degree which renders continued sharing of the matrimonial dwelling impractical.

[24] In that case the wife sought an order for exclusive possession on the basis that the husband had undertaken a deliberate campaign of psychological warfare against her and her friends. The wife produced a medical report which spoke to her symptoms of anxiety and fear, and how the husband’s mental abuse exacerbated her symptoms. The court found that the conduct of the husband did produce a state of anxiety which put the wife in fear of the husband’s behaviour.

[25] The husband argues that no medical evidence was put forward by the wife to show that the husband’s text messages put her in fear of his behaviour or impinged on her mental and physical health. While the wife deposed that she lived in a state of anxiety and was concerned about when the husband would next be enraged against her, there was no evidence that the texts continued after the one period of time highlighted by the texts in Justice McGee’s decision, nor was there an application to introduce any fresh evidence on the motion for leave to appeal, for the purpose of showing that more texts had been sent.

[26] Justice McGee relied on Williamson v. Massinger, 2011 ONSC 7733, [2011] O.J. No. 6052, in which the court found the text message exchanges helpful in understanding the dynamics of the relationship between the parties. In that case the wife sent threatening texts to the husband, including a threat that the husband would no longer be seeing his child until a court order was in place, and in fact the mother followed through on that threat.

[27] Despite various concerns that the court had with the wife’s behaviour, it concluded that there had been only one major conflict between the parties relating to their child, and that they had the ability to work together on issues pertaining to the child. The husband argues that McGee J. cannot rely on this case as it did not relate to the issue of exclusive possession, but focused on joint versus sole custody of the child, and the parties’ respective plans of care.

[28] Justice McGee also relied on Kutlesa v. Kutlesa, 2008 CarswellOnt 1657 (Ont. S.C.). In that case the court considered a number of text messages in which the husband threatened to quit working and told the wife that, “You and everyone like you sucked the life out of me, pushed way too far, now you will see.” The husband also broke into the house and cancelled insurance policies. In granting the order for exclusive possession, the court considered the husband’s non-physical acts of aggression, including the text messages.

[29] The husband argues, however, that Justice McGee did not take the correct approach with respect to Kutlesa because the case suggests exclusive possession in Kutlesa was based on all of the factors in section 24(3) and not just section 24(3)(f).

[30] The husband submits that there are other cases which are in conflict with Justice McGee’s decision, including Strobridge v. Strobridge, 2000 CarswellOnt 1319 (Ont. S.C.) at paras. 7-11 in which the court found that Mr. Strobridge had been emotionally abusive towards his wife, but the abuse did not reach the threshold required under section 24(3)(f).

[31] In John v. John, 2008 CarswellOnt 5230 (Ont. S.C.) the court found that there was verbal abuse and physical violence between the parties, although the court was concerned that the allegations were exaggerated by the mother. The court declined to grant the mother exclusive possession of the home.

[32] In Gredig v. Dennis, 2012 ONSC 5223, 2012 CarswellOnt 11450 both parties claimed violence and that it was no longer in the children’s best interests that they reside together under the same roof. Justice Heeney declined the wife’s request for exclusive possession noting the parties had lived separate and apart under the same roof for one year. He adverted to the fact that there was only one noteworthy incident during the entire time that the parties had been in the home and that the children had not become “collateral damage” as a result of the separation.

[33] Finally, in Piscioneri v. Piscioneri, 2000 CarswellOnt 2854 (Ont. S.C.) the wife obtained an ex parte order for interim exclusive possession of the home, but at the return of the motion the relief was not continued. The court was satisfied that the husband did not commit any violence against the wife or children that would warrant his exclusion from the home. Further, the financial position of the parties was such that the husband could not maintain the expenses of two residences and have monies available for child and spousal support.

[34] The husband argues that these cases conflict with the decision of Justice McGee because they imply that something more than text messages is required for a finding of violence under section 24(3)(f) especially where the parties have been residing together for a period of time and there is no evidence of any negative effect on the child or children. The husband argues that therefore the first part of the test on a motion for leave to appeal has been met.

[35] The wife’s position is that violence under section 24(3)(f) of the Family Law Act does not require direct physical injury, and that intimidation and emotional abuse may take many forms. The wife argues that in these particular circumstances and on these particular facts, the text messages were sufficient to support a finding of violence, and that Justice McGee correctly relied on the cases she did in coming to that conclusion.

[36] The wife notes that in Strobridge the acts of violence complained of were things such as the husband putting salt in the wife’s coffee and grease on the door handle of her car. These facts were insufficient to establish a level of violence to force Mr. Strobridge from the home. The court found that the father being sarcastic and undermining the mother’s authority in front of the children did not constitute psychological warfare as alleged by the wife, and that there was a lack of specific examples of the conduct complained of by the wife.

[37] Many of the cases cited by the husband contained contradictory evidence from which the court was unable to draw a conclusion or the allegations of the moving party were found to be exaggerated. The context of the text messages in the case at bar were not in dispute and their meaning was clear on their face. McGee J. found there was no doubt that they were not intended as “jestful or ambivalent.”

Ruling on Conflicting Decisions

[38] I find that there are cases which have different results from the findings of McGee J. in relation to what constitutes violence under section 24(3)(f), however, any “conflict” results from an exercise of discretion in deciding a question of fact.

[39] It is clear from the case law that “violence” as a ground for granting exclusive possession comes in many forms. McGee J. was satisfied that the text messages allowed her to overcome the threshold she had not been able to in her decision in March 2012. She reviewed the history of the matter thoroughly and had had prior significant involvement with the case. As well, she drew the conclusion that the text messages provided support for a finding in relation to the dynamic of the parties’ relationship.

Is there good reason to doubt the correctness of Justice McGee’s order and does the proposed appeal involve matters of such importance that leave to appeal should be granted?

[40] The decision appealed from need not be considered clearly or probably wrong, but the judge considering the application for leave must find that there is “good reason to doubt the correctness of the decision”. That is, the court should ask itself whether the decision is open to very serious debate, and if so, whether that decision warrants resolution by a higher level of judicial authority. (Wood v. Wood, 2001 CarswellOnt 167 (Ont. S.C.) at para 9.)

Ruling on Correctness

[41] I do not find that there is reason to doubt the correctness of the decision. McGee J. thoroughly reviewed the relevant authorities and concluded that the text messages were sufficient to constitute violence. She was alive to the fact that some authorities such as Kutlesa required more than text messages to constitute violence. However, she noted that in that case the husband had already left the home and it was his actions such as cancelling the insurance and breaking into the home that led the court to find that there was violence.

[42] McGee J. noted that the husband in the case at bar had agreed at the March 2012 motion to live quietly and discreetly in a small part of the home. She found that the text messages belied his ability to do so.

[43] Finally, the court was concerned about the effect of the tension in the home on Alexia. While the affidavit of Ms. Guthrie-Douse was not evidence that was available to McGee J. when she made her decision, she was correct in addressing that concern in the context of the best interests of the child.

[44] For all of the above reasons I do not find there is any reason to doubt the correctness of the order in question.

[45] It is well established law that the words “matters of such importance” in Rule 62.02(4)(b) are matters of general importance, and not of particular importance to the parties. General importance has been found to relate to matters relevant to the development of the law and administration of justice.

[46] It is my view that the issue of whether or not text messages constitute violence under section 24(3)(f) of the Family Law Act is not a matter of such general importance to the administration of justice, and in particular to family law, that leave should be given.

[47] In the current age of social media, parties communicate regularly by text and email. When reproduced in a court record this form of communication is rather stark and without context. However, neither party denied that the husband was the author of the texts and the court was left with their cold and pointed message.

[48] “Violence” need not include a threat of physical violence. Intimidation tactics such as the husband’s callous comments about the wife’s counsel can suffice because the effect is to attempt to undermine the wife’s confidence in her counsel. Therefore, there is no reason to believe that “violence” in the context of section 24(3)(f) cannot be found on the basis of text messages subject to the factual matrix in which the messages were sent and received.

Ruling on General Importance

[49] Given the above, I do not find that the issue of whether text messages can constitute violence under section 24(3)(f) is a matter of such general importance that it must be considered by an appellate court. In the right set of factual circumstances there is no doubt that text messages can constitute violence. An appellate court ruling is not needed on an issue that is one which turns on the facts of each individual case.

[50] The Appellant’s motion for leave to appeal is therefore dismissed. The Appellant shall vacate the matrimonial home by April 1, 2013.

Motion to Strike

[51] With respect to the wife’s argument that the husband should not be entitled to proceed because of his failure to provide support, I note that there is already an order in place requiring him to pay 50 percent of his commissions to the wife, and that he has been attempting to set a settlement conference date so that he may bring his motion to vary the order of Justice McGee from March 21, 2012. In fact, his counsel sought my assistance in getting an early date as he had been unsuccessful in obtaining one from the trial coordinator in Newmarket.

[52] As such, I order that a settlement conference be held in this matter with respect to the issues of child and spousal support and disclosure and any other outstanding issues within three weeks of the date of release of this decision. The trial coordinator shall facilitate finding a date for the parties in the circumstances.

Costs

[53] If the parties cannot agree on costs they shall provide a two page summary exclusive of any Bill of Costs or Offers to Settle on a seven day turnaround starting with the wife on February 25, 2013.

Justice C. Gilmore

Date: February 11, 2013