ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-14-1285
DATE: 2014/06/09
BETWEEN:
Kateri Clark
Applicant
– and –
Harold Westendorp
Respondent
Alice Weatherston, for the Applicant
Self-Represented, Did Not Appear
HEARD: June 9, 2014
DECISION ON MOTION
PHILLIPS J.
[1] The Applicant seeks an order for exclusive possession of the matrimonial home and for a restraining order against the Respondent Husband. The motion is brought on an urgent ex parte basis. The Respondent has not been advised of the proceedings; he is out of the country on holiday until Wednesday, June 11, 2014. Obviously, upon his return there will be significant acrimony between the parties.
[2] The Applicant and the Respondent were married on December 3, 2011. They each have children from previous relationships. The Applicant has a 12 year old daughter, while the Respondent has a 15 year old daughter and a 13 year old son. The children live with the couple on a week-on/week off parenting schedule.
[3] The Applicant brings this motion in this way because she is fearful about the Respondent’s reaction to her decision to end their relationship. While I am careful not to make definitive findings of fact given the ex parte nature of this proceeding, I note the Applicant’s affidavit evidence to the effect that the Respondent is a volatile and violent alcoholic. As she tells it, he has been intimidating and verbally abusive toward her for years. In the past year, he has been physically assaultive by pushing her and has even gone so far as to place his hands around her neck as if to threaten to choke her, removing them only when the children pulled him away. As recently as February or March 2014, the Applicant indicates that as the relationship deteriorated, the Respondent threatened to burn the matrimonial home down if he could not live in it. She says he even brought a can of gasoline inside to show that he means business. In sum, the Applicant describes a pattern of behaviour on the part of the Respondent that has been escalating in its abusiveness in the form of real and threatened violence.
[4] I have reviewed a domestic contract signed by both parties prior to the purchase of the matrimonial home. It sets out the financial positions of the parties at the time of the purchase and their understanding that the home shall be excluded from the property division provisions of the Family Law Act as per section 4(2)(6) of that Act. I note that the heavily mortgaged home was purchased with funds coming entirely from the Applicant. I also note that the agreement sets out that should the relationship end the home will be sold and the Applicant will get her contribution back before any equalization, a result that effectively eliminates the Respondent having any current financial interest in the property. Indeed, it is partly because of the Respondent’s complete lack of financial stake in the property that the Applicant fears he will come through on his promise to burn the house down.
[5] I am told that the Respondent is a self-employed contractor who is able to support himself financially. I am also told that the couple owns a 20 foot trailer that is both heated and air-conditioned and equipped with a kitchen, bathroom and sleeping quarters for six. The Applicant proposes that the Respondent could stay in the trailer should she be successful on this motion.
[6] As a starting point in the legal analysis, I note that it is well-established that prima facie, each spouse has an equal right to possess a matrimonial home. There are exceptions to that general rule to be determined in accordance with section 24 of the Family Law Act. That section directs that, in determining whether to make an order for exclusive possession, the Court shall consider factors including:
a) the best interests of the children affected;
b) the financial position of both spouses;
c) any written agreement between the parties;
d) the availability of other suitable accommodation; and
e) any violence committed by a spouse against the other spouse.
[7] As already mentioned above, I am careful not to draw any definitive conclusions from the information presented on this motion. As a simple matter of fundamental justice I should not do so without hearing from the Respondent and considering any evidence he would want to put before the Court. I also keep in mind that the assertions contained in the Applicant’s affidavit have not been tested through cross-examination. Having said all that, however, on the record before me there is evidence of a significant risk of harm to the Applicant from the Respondent should this separation unfold with both of them living under the same roof or in the absence of a restraining order. While I reiterate that I recognize the untested nature of the evidence, I decline to ignore it or give it no weight whatsoever. For present purposes, I accept that the Applicant fears for her safety and she sets out a basis which makes her fear reasonable in the circumstances.
[8] I have been persuaded to grant the Applicant an order for exclusive possession of the matrimonial home, but only on an interim interim basis pending a hearing of the motion with notice. The matter shall therefore return before the Court within 10 days to allow for a reassessment of the reasonableness of the order after affording the Respondent an opportunity to be heard.
[9] I also make a restraining order, albeit on the same interim interim basis subject to reassessment after hearing from both sides.
[10] My objective is to put in place a structure to keep the peace while at the same time respecting the Respondent’s right to meaningfully participate in any proceeding infringing upon his interests. In my view, reducing the risk of violence or allegations of violence in this household is in the best interests of all involved and is a goal that is called for given the evidence and which outweighs the Respondent’s property rights in the short-term. I am persuaded that the Respondent can live in the trailer at least temporarily and that he has the financial wherewithal to take care of himself and navigate the proceedings to come. I am also persuaded that while the Respondent’s move to the trailer will obviously affect the access arrangement in place regarding his children, he will still be able to see them. In any event, that outcome is better for the children than the alternative.
[11] It is hereby ordered on an interim interim basis that the Applicant, Kateri Clark, have exclusive possession of the matrimonial home at 20 Elke drive, Ottawa, Ontario.
[12] It is also hereby ordered on an interim interim basis, pursuant to section 46(1) of the Family Law Act, that the respondent Harold Westendorp be restrained from:
(a) Directly or indirectly contacting or communicating with the Applicant, Kateri Clark and her daughter, Bernice Ann Corbishley;
(b) From coming within 50 metres of:
the Applicant, Kateri Clark and/ or her daughter Bernice Ann Corbishley;
the matrimonial home located at 20 Elke drive, Ottawa, Ontario;
Industry Canada, C.D. Howe Building (235 Queen Street, Ottawa);
28 Briggs Avenue, Ottawa, Ontario;
Bishop Hamilton Montessori School, 2199 Regency Terrace, Ottawa.
[13] Notwithstanding the above, it is ordered that the Respondent, Harold Westendorp, be permitted to attend the property at 20 Elke Drive once in the presence of a police officer for the purpose of collecting his personal belongings (which shall include his truck and the trailer).
[14] The Respondent may be served with the order via email to the address contained in the Notice of Motion. I also direct that the order be communicated to the Ottawa Police.
[15] The matter shall return to Court on June 18, 2014 at 2pm for a full hearing of the issues decided in this motion with notice.
[16] There will be no order as to costs.
The Honourable Justice Kevin B. Phillips
Released: June 9, 2014
COURT FILE NO.: FC-14-1285
DATE: 2014/06/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kateri Clark
Applicant
– and –
Harold Westendorp
Respondent
DECISION ON MOTION
PHILLIPS J.
Released: June 9, 2014