SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-14-81792

DATE: 2015 12 30

RE: BARBARA JEAN ASTON and RONALD MATWEE

BEFORE: EMERY J.

COUNSEL:
Elliot Birnboim, for the Applicant

Noel A. Nolasco da Silva, for the Respondent

HEARD: November 27, 2015

ENDORSEMENT

[1] The applicant Barbara Jean Aston brings this motion for exclusive possession of the matrimonial home at 25 Marchmount Crescent in Brampton. Although she and her husband, the respondent Ronald Matwee, separated on July 23, 2014, they currently reside under the same roof. Ms. Aston submits that Mr. Matwee’s aggressive conduct toward her, together with her serious health issues, has created a toxic environment in the home that makes it intolerable for that living arrangement to continue.

[2] Mr. Matwee vigorously opposes this motion. He submits that the motion is a strategic move by Ms. Aston to enhance her position in the larger family law proceeding, notably her claim to set the marriage contract between them aside.

A BRIEF BACKGROUND

[3] Ms. Aston and Mr. Matwee have been romantically involved for approximately 25 years. They cohabited from 1993 to 1994, and commenced cohabiting again in June 2007. They were married on August 9, 2008.

[4] Both Ms. Aston and Mr. Matwee are 68 years of age.

[5] Ms. Aston and Mr. Matwee do not have any children together. Ms. Aston has an adult son and Mr. Matwee has two adult daughters. All of the children are married and live independently.

[6] Mr. Matwee has resided at 25 Marchmount Crescent for 38 years. He is the sole registered owner and brought the home into the marriage.

[7] Mr. Matwee deposes that he has always paid, and continues to pay, all expenses for the house and property. He is responsible for the maintenance of the house and the upkeep of the grounds.

[8] Ms. Aston seeks exclusive possession of the matrimonial home as a result of two developments that she alleges have occurred since the date of separation. First, she alleges she has become vulnerable because she has experienced serious health issues since separation that have required her hospitalization. The second is the campaign of harassment she alleges Mr. Matwee is conducting against her in the matrimonial home. She argues that the combined effect of both her vulnerability and Mr. Matwee’s conduct makes it unbearable for her to reside in the matrimonial home with him. Ms. Aston submits these developments provide adequate grounds under s. 24(3) of the Family Law Act for the court to grant exclusive possession of the matrimonial home to her.

ANALYSIS

[9] Under the Family Law Act, the rights of each spouse to occupy the matrimonial home are sacrosanct. In section 19, the legislature has provided that both spouses have an equal right to possession of a matrimonial home. Section 24 of the Family Law Act provides that, despite section 19, the court may give exclusive possession of the matrimonial home as the court may direct, among other things.

[10] It is important for the purpose of this motion to set out s. 24(3) of the Family Law Act. Section 24(3) establishes the factors a court must consider on a motion for exclusive possession. Section 24(3) reads as follows:

24 (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).

[11] There are no children of the marriage residing in the home to consider, and no previous orders made by the court under Part 1 of the Family Law Act or for support to take into account. Therefore, I intend to look at subsections (c) to (f) severally and holistically to determine the issue.

The Financial Positions of the Parties

[12] Ms. Aston states that Mr. Matwee is in a far better financial position to obtain accommodation than herself. She has filed evidence that he is a sales representative at Cimco Refrigeration and that he earned gross income in 2014 of $326,282.18. She also points out that his financial statement discloses that his current monthly income is $11,608.73.

[13] Ms. Aston describes how Mr. Matwee owns business interests in Nortam Investments Ltd. According to Mr. Matwee’s financial statement, Nortam Investments Ltd. had a value of $230,800.36 on the date of separation. She states that Mr. Matwee has not provided full disclosure of his business interests despite repeated requests from her lawyer. She also states that there are several undertakings from Mr. Matwee’s questioning that remain outstanding.

[14] By comparison, Ms. Aston describes how she is now retired. She derives her income from CPP benefits and from minimal investment income that amounts to approximately $2,500 a month. Before her retirement, she worked as a data analyst earning approximately $40,000 a year. She was laid off at 55 years of age and took early retirement approximately 12 years ago when she could not find another job. She states that she has nominal savings.

[15] Mr. Matwee has given evidence that Ms. Aston actually owns assets of $492,008.36 according to her financial statement dated September 30, 2014. He also points to her financial statement that shows her annual income to be $37,477.40, including RRSP income. He states that Ms. Aston received a severance package when she was laid off from her employment and that she chose not to return to full time work. He argues that she lived on her own and was totally independent for five years as a retired person before the marriage.

[16] The parties jointly own a condominium in Florida. In paragraph 12 of her affidavit, Ms. Aston describes how Mr. Matwee asked her about her plans regarding this property on October 6, 2015, to which she responded that the parties should deal with it through counsel. She deposes that Mr. Matwee refused, and started yelling and swearing at her which caused her significant stress and anxiety.

[17] Mr. Matwee states that if Ms. Aston is concerned about the property, all she must do is to agree with him to have it listed and sold at a mutually agreeable price. He states in his factum “it is estimated that the parties would each be entitled to $125,000 US after a sale”. He states that the condominium has been sitting empty for over a year and is costing the parties approximately USD $1,000 per month to maintain.

[18] While I find that Mr. Matwee has the income to afford a change to the current living arrangements, I also find the evidence filed by Ms. Aston downplays her property holdings and income. Mr. Matwee’s affidavit, relying on historical fact and information found in Ms. Aston’s financial statement, provides a more realistic picture of her resources. I find that each of the parties could afford to obtain ultimate rental accommodation in Ontario if they so desired. I also find that the parties, who have filed no evidence about any reason to keep the Florida property, have the option to sell that property and to divide the net proceeds of sale if they are able to cooperate with each other. This would provide Ms. Aston with a down payment to purchase a house or condominium in Ontario, or to use as an investment to generate income. I therefore consider this factor to be neutral to the parties.

Any Written Agreement Between the Parties

[19] Ms. Aston and Mr. Matwee signed a marriage contract in August 2008. This marriage contract apparently recognizes that Mr. Matwee is entitled to full ownership of the matrimonial home on dissolution of the marriage. The evidence on the motion shows that Ms. Aston is now attempting to set this marriage contract aside.

[20] Although there is passing reference in Ms. Aston’s affidavit that Mr. Matwee intimidated her to sign the marriage contract, there was no evidence of coercion or manipulation to support that assertion in the materials filed for the motion. I have not considered the claim in the litigation to set the marriage contract aside in any event, as that issue should be dealt with on a full evidentiary record at a motion for summary judgment or at trial. There is no other evidence of another written agreement between the parties with respect to the right of possession to the matrimonial home. I therefore consider the factor of whether there is a written agreement between the parties to be inapplicable.

The Availability of Other Suitable or Affordable Accommodation

[21] Ms. Aston has brought the motion for exclusive possession of the matrimonial home. Mr. Matwee has not brought a similar motion for exclusive possession. I therefore consider it appropriate to deal only with whether Mr. Matwee has suitable or affordable alternate accommodation available to him if this court were to award exclusive possession of the matrimonial home to Ms. Aston.

[22] Ms. Aston has given evidence that, in addition to Mr. Matwee’s financial ability to obtain alternate accommodation, he currently stays at his girlfriend’s residence every weekend. Mr. Matwee has this to say about that:

38. I have socialized with a friend on the weekend. I do not do so every weekend. I do not have any wish to move in with any other person. There is no reason to rush into another situation, before the difficulties of this matter are sorted out. I am simply not ready to do so either for myself or to impose my existing problems on someone else.

[23] Ms. Aston has provided no evidence about other options Mr. Matwee has available to obtain alternate accommodation, or any actual opportunity to enter into a living arrangement with another person. There is no further evidence about the relationship Mr. Matwee has formed with a friend he visits from time to time on weekends. There is also no evidence from that other person about whether an alternate living arrangement with Mr. Matwee is feasible.

[24] I consider there to be insufficient evidence filed by Ms. Aston to properly consider this factor on the motion.

Evidence of Violence by One Spouse Against the Other

[25] Ms. Aston seeks an order from this court for exclusive possession of the matrimonial home because of the effect of Mr. Matwee’s behavior on her fragile health. She concedes that there has been no physical violence between Mr. Matwee and herself. Ms. Aston relies upon Hill v. Hill 1987 CarswellOnt 238 (District Court) and the more recent decision of Justice Pazaratz of this court in Kutlesa v. Kutlesa 2008 CarswellOnt 1657 to support her position that callous conduct against a vulnerable spouse can, in certain circumstances, qualify as “violence” within the meaning of section 24 (3) (f) of the Family Law Act.

[26] Ms. Aston relies upon the evidence she has given in her affidavit filed in support of the motion with respect to the conduct of Mr. Matwee. This evidence is summarized in paragraph 16 and 17 of her factum as follows:

16. The Respondent has frequent outbursts and they have been escalating in the past few weeks. It is extremely stressful to live with him and the Applicant is concerned about her safety:

(a) he regularly yells and swears at the Applicant, calling her a “fcking btch”, accusing her of not keeping the house clean and “poisoning” him;

(b) to the Applicant’s knowledge, there are currently three guns with bullets in the house and they are not locked up. The Respondent keeps one gun under this bed and the bullets in the night stand – the Applicant is terrified that the Respondent may harm her in one of his outbursts. The Applicant does not believe he has a gun licenses. [sic]

17. The Respondent is extremely abusive and makes every effort to make life difficult for the Applicant:

(a) Despite her protest, the Respondent has been turning down the heat to 15.5 degrees every single day, knowing full well that the Applicant would be freezing and it’s detrimental to her health;

(b) In the summer, the Respondent took the handles off the windows so the Applicant could not open them, and he refused to turn on the air conditioning until mid-July;

(c) On many occasions the Respondent would deliberately turn off the lights while the Applicant is cooking in the kitchen – it is very dangerous especially given that the Applicant is not steady on her feet after the stroke;

(d) The Respondent would also turn off the television the Applicant was watching while she was making a short trip to retrieve something from the kitchen;

(e) The Respondent keeps cancelling the newspapers that the Applicant subscribed to without consulting her – she would often be waiting for her newspaper deliveries only to find out that they had been cancelled by the Respondent without any reason;

(f) Sometime in May 2015, the Respondent even emptied out all the cabinets and took out all the food in the house;

(g) The Respondent also cancelled the internet service so that the Applicant could not print anything for her court materials;

(h) The Respondent disconnected the radio, the stereo and CD player so that the Applicant could not use them.

[27] Mr. Matwee deposes in his affidavit that:

a) at paragraph 17, that he was not aware of Ms. Aston’s condition on October 7, 2015 as she seldom speaks to him. He states that he was working in his office and knew that the knocking on the front door of home was not for him. When Mrs. Aston left the house she did not say where she was going, or why she was leaving. He states that there was a communication problem between them at the time and that unfortunately, that communication problem is normal in these difficult circumstances;

b) in response to paragraph 15, he states that he has never harassed or abused Ms. Aston and states that paragraph 15 is completely fabricated and untrue;

c) he states that because of her antipathy and active dislike, he always locks his bedroom door at night. He denies that he has ever called her a “f*** bitch”;

d) that his hunting rifles have always been properly, legally and safely stored. He states that he has the necessary licences and permits for the rifles. He states that he has gone to a gun club in the past with a friend on occasion;

e) in response to paragraph 17, he states that those allegations are untrue and that he does what he can to make things easy for Ms. Aston. He cleans up after both of them as required. He does the maintenance and all the yard work around the house. He takes out the garbage and recycling. He continues to pay all the bills for the house, just as he always has;

f) he explains that the thermostat issue in paragraph 17 is a “deliberate misunderstanding”. The thermostat at the house is a setback type and the temperature goes down at night to conserve energy. He states that the only time that he turns the lights off is when Ms. Aston leaves them on and he turns them off after she leaves the house;

g) Mr. Matwee states that he does not turn off the TV on Ms. Aston. He turns it off after she has left to go to her bedroom or has left the house;

h) on the occasion when he noticed newspapers piling up on the front porch, he put a vacation stop on the paper as a safety precaution to prevent a break-in. He did not know when Ms. Aston was returning as she does not tell him such things and he did not enquire;

i) Mr. Matwee admits that he cancelled the internet at the house because he never uses it and it is expensive. He states that he can use the data plan on his cell phone if he wishes access to the internet. Ms. Aston can do the same. He also notes that the internet is free to access at the library.

j) Mr. Matwee denies that he emptied the cabinets in the kitchen or taken all the food in the house. He attached a photograph of a pantry in the kitchen as an exhibit that shows the pantry is full of food. He also states that there is also a large freezer with food in it that Ms. Aston fails to mention.

k) Mr. Matwee agrees that he disconnected his old stereo system from the 1980s as he was not using it, nor was Ms. Aston. If Ms. Aston wishes to use this old equipment it can easily be connected and plugged into the wall socket.

l) Contrary to paragraph 18 of Ms. Aston’s affidavit, he has not belittled or abused her. He states that it has always been understood before and after the marriage that the home that he had owned for so many years was going to remain his home after marriage. He denies that he has ever told Ms. Aston to get out.

m) Mr. Matwee states that the allegations in paragraph 19 are a fabrication. He denies that he has attacked Ms. Aston verbally or in any other way. He states that he hates conflict and tries to avoid it. He states that he courteous to Ms. Aston. He states that he tries to go out on the weekends for social purposes in order to avoid conflict with her.

n) Mr. Matwee maintains that Ms. Aston has not been harmed by his presence in the house in any way. He states that Ms. Aston continues to lead her normal life, and meets with her regular group of friends in the home to play cards, as they did before separation.

[28] Mr. Matwee states in his affidavit that Ms. Aston has known for many years that he owns hunting rifles. This issue never bothered her before separation. Mr. Matwee states that he has now removed the hunting rifles from the home in any event and that “they are safely stored far away, at a friend’s home.” He states that he does not now and has never in the past used a rifle in a threatening manner.

[29] Ms. Aston has filed evidence with respect to her health condition. She states that she’s been experiencing many health issues for the past two years and had to be hospitalized on several occasions. She describes how she suffered a stroke in June 2014 and was hospitalized for three days. She states that she continued to experience residual weakness and pain on her left side due to the stroke, and that her health has significantly worsened since that time.

[30] Ms. Aston also explains that in addition to the residual symptoms from the stroke, she suffers from chronic cholelithiasis and diverticula disease, conditions that cause her considerable pain on a regular basis. She suffers from urinary incontinence. These conditions are noted in reports from Dr. Christopher Veenema and Dr. Nonafede, and from Dr. Braithwaite attached to her affidavit as exhibits. Ms. Aston has also filed the affidavit of Julieta Vergara, a law clerk in the law firm of her counsel, to which various medical notes and records from Dr. Veenema and other physicians treating Ms. Aston are attached.

[31] Mr. Matwee deposes that Ms. Aston is a secretive person and did not tell him about her health issues recently. All he knew was that she had had a very mild stroke. In that regard, he deposes at paragraph 34 as follows:

34. The applicant’s activities since her mild stroke have not been hampered. She goes up and down stairs without difficulty. She drives her car and goes out regularly. She continued to play golf. I have not noticed her walking differently. Her normal activities and movements are not hampered by my presence in the house in any way. She is certainly not afraid of me in any way.

[32] Mr. Birnboim agrues that Ms. Aston’s evidence meets the standard in Hill v Hill to constitute violence within the meaning of section 24(3)(f). Justice Fitzgerald in Hill gave an eloquent definition of non-physical “violence” within the meaning of subparagraph (f) by stating that:

[25] Paragraph (f) refers to “violence”. In my view the violence in this context must be such that it makes continuation of joint cohabitation in the matrimonial dwelling impractical. 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. Where, as here, the conduct of the husband in written and spoken communication to the wife is calculated to produce and does in fact produce an anxiety state which puts the wife in fear of her husband’s behaviour and impinges on her mental and physical health, violence has been done to her emotional equilibrium as surely as if she had been struck by a physical blow.

[33] And at Paragraph 28:

[28] In my view the sense and purpose of the Family Law Act, which is a remedial statute and hence to be liberally construed, must surely include in the meaning of violence that violence causing injury to a spouse which can be achieved by words and deeds and is not restricted to the violence which can be achieved solely by physical abuse.

[34] Justice Pazaratz in Kutlesa v. Kutlesa, relied upon the analysis of Fitzgerald J. in Hill v. Hill to award exclusive possession of the matrimonial home to the wife moving for exclusive possession on those facts. However, Justice Pazaratz connects the essential elements required to meet the factor in section 24(3)(f) to constitute violence with a need of the vulnerable spouse for protection in the following way:

[31] The “violence” referred to in section 24(3)(f) must, of necessity, contemplate that spouses may need to be protected from serious injury or harm which can arise even without physical hitting. Intimidation and emotional abuse can take many forms. The court has a responsibility to address the real dynamics between the parties, including any effort by a strong or dominant partner to engage in psychological warfare, or coerce settlement without making disclosure.

[35] I consider the facts in Hill v. Hill to be different than the facts before me. In Hill, Justice Fitzgerald made findings of fact amounting to a psychological assault upon the moving party. This psychological campaign made the continued sharing of the matrimonial home impractical. The therapist of the moving party wife also gave evidence as to the effect of the psychological violence and intimidation on her.

[36] Justice Fitzgerald also found that there was no lack of money available in the short term to either party, and that the husband had a lessor emotional attachment to the home and that he has the lessor continuous use of the home. In conclusion, Justice Fitzgerald found that it would be an equitable settlement of the affairs of the spouses that the wife have interim exclusive possession of the matrimonial home and contents for the reasons given in his decision.

[37] In Kutlesa, the wife was a schizophrenic. There was cogent evidence before the court that the husband made real threats to cut her off from financial assistance amounting to frightening acts of intimidation directed at an emotional weak and vulnerable spouse. Threats were made that increased the wife’s stress and anxiety. This exacerbated her health condition which was confirmed by her doctors.

[38] Mr. Matwee relies upon Moulin v. Moulin, 1989 CarswellOnt 1368 and Gainer v. Gainer 2006 CarswellOnt 2443 as well as Brew v. Brew, 1997 CarswellOnt 5822. The court in each Moulin and Brew relied upon the decision of Justice McMahon in Rosenthal v. Rosenthal (1986), 1986 6320 (ON SC), 3 R.F.L.(3d)126 (Ont. H.C.) , where the court held that the moving party seeking exclusive possession of a matrimonial home must establish on the balance of probabilities that the evidence relied upon falls within the provisions of section 24 (3).

[39] On the totality of the evidence given in Rosenthal, the moving party was found to have failed to satisfy the court that she had met that requirement. Accordingly, the court dismissed the motion for exclusive possession and ordered that the matrimonial home be sold. The court in Moulin, after discussing Rosenthal, reaffirmed that the onus is on the moving party to establish that one or more of the six factors listed in section 24 (3) must be met before the court grants an order of temporary or interim exclusive possession of a matrimonial home to one spouse.

[40] In Kutlesa, Justice Pazaratz recognized that the court has responsibility to address the real dynamics between the parties. Just as in Moulin, the onus is on the wife to establish that one or more of the six factors listed in section 24(3) provide the basis to order exclusive possession of the home to her.

[41] In Gainer, Justice Quigley stated that an interim exclusive possession order is extraordinary in nature, insofar as it will displace one of the incidents of legal ownership of the matrimonial home in the case of the non-possessory spouse.

[42] In argument, Mr. da Silva made the following observations on behalf of Mr. Matwee from a review of the medical reports, notes and records that Ms. Aston has attached to the affidavit material:

1. There has been no police involvement with respect to Mr. Matwee and Ms. Aston living separate and apart in the matrimonial home;

2. Ms. Aston is receiving social support from a councillor;

3. The social worker, Leah Direnfeld, perceives no imminent safety concerns for Ms. Aston;

4. Ms. Aston has not reported any mental health diagnoses to her social worker;

5. Ms. Aston has attributed the stress she has suffered after the date of separation to the divorce proceedings;

6. Ms. Aston is receiving botox treatment for her stroke;

7. The treatment she is receiving for the stroke is not related to Mr. Matwee;

8. The osteoporosis that she suffers from is not related to Mr. Matwee;

9. The topography test conducted by Dr. Sessford show multiple simple liver cysts and multiple colonic diverticuli which are described as problems of long standing.

[43] Mr. Matwee argues that there are six different medical sources in Ms. Aston’s material that demonstrate that Mr. Matwee has nothing to do with the health issues that Ms. Aston has experienced in 2015. It would appear that the only medical opinion that supports Ms. Aston’s position that Mr. Matwee’s conduct has caused her stress on top of her health condition is found in the letter from Dr. Veenema dated November 9, 2015 attached as Exhibit G to Ms. Aston’s affidavit which I set out in its entirety:

To Whom it may concern:

I am Barbara’s family doctor.

She has asked me for a letter regarding her mental health and current living situation. For more detailed information on this topic please refer to the social work notes as well as my own clinical notes that have already been provided.

Barbara has had depressive and anxious symptoms since her husband asked her for a divorce nearly two years ago. Prior to this she had no mental health concerns. One of the primary stressors that she can identify is her personal interactions with her husband. These interactions are reported to be verbally and emotionally abusive towards Barbara. She believes that if she and her husband are no longer living together that her mental health will improve significantly. It is my opinion that this is the case.

Sincerely,

Christopher Veenema, MD

[44] I take this letter to be, as Mr. da Silva describes, Ms. Aston’s report to her own doctor. I draw this inference from the subjective language “stressors that she can identify”, “these interactions are reportedly to be verbally and emotionally abusive” and “she believes” before the statement that if Ms. Aston and Mr. Matwee were no longer living together, her mental health will improve significantly. Dr. Veenema simply writes “it is my opinion that this is the case.” There is no discussion provided by Dr. Veenema as to how she reached this conclusion, and on what basis she expresses her opinion.

[45] It is my view that on the evidence, I cannot determine the real dynamics between the parties because the affidavits directly contradict each other. There is no separation agreement or support order in place. There is no indication that Ms. Aston intends to bring a motion for interim support, although it is open for her to do so.

[46] The court in Gainer v. Gainer held that the emotional condition of a spouse is not a factor enumerated under section 24(3) which the court is permitted to take into account. Therefore, the evidence given by Ms. Aston that the divorce is causing her stress, or that Mr. Matwee’s conduct working upon her fragile health has created stress and anxiety amounting to an emotional condition should not be considered under any factor of section 24(3). I say this subject to the exception in Hill where violence is found on the evidence where there has been a psychological assault upon the sensibilities of the other spouse to a degree that renders continued sharing of the matrimonial dwelling impractical.

[47] In the final result, I cannot determine with the assuredness required by the law if there is sufficient or reliable evidence of the existence or level of such conduct that might amount to “violence” of a psychological nature. I say that the court must make the requested determination with assuredness because any order for exclusive possession would dislodge Mr. Matwee from a statutory right he holds as a spouse. An order depriving either spouse of his or her possessory rights in a matrimonial home should not be made unless supported by appropriate evidence that meets the necessary burden of proof, and according to law.

[48] Ms. Aston has not met the burden of proof required of her as the moving party. She has failed to satisfy the court on the balance of probabilities that she should be granted exclusive possession of the matrimonial home under one or more of the factors listed under section 24(3).

CONCLUSION

[49] The motion of Ms. Aston is therefore dismissed. However, it is dismissed without prejudice for Ms. Aston to bring another motion while she remains a spouse if there is subsequent conduct by Mr. Matwee to support a claim of violence under subsection (f), or to provide further and better evidence under any of the other factors under section 24(3) of the Family Law Act.

[50] If either party seeks costs, they may make submissions in writing consisting of no more than three pages by January 11, 2016. Those submissions may be made to my judicial assistant, Mr. Christopher Charles, by fax at 905-456-4834. Any written materials in response consisting of no more than three pages may be made by January 18, 2016 by fax.

Emery J

DATE: December 30, 2015

COURT FILE NO.: FS-14-81792

DATE: 2015 12 30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BARBARA JEAN ASTON
and
RONALD MATWEE

BEFORE: EMERY J.

COUNSEL: Elliot Birnboim, for the Applicant

Noel A. Nolasco da Silva, for the Respondent

ENDORSEMENT

EMERY J

DATE: December 30, 2015