Perks v. Lazaris, 2016 ONSC 1356

CITATION: Perks v. Lazaris, 2016 ONSC 1356

NEWMARKET COURT FILE NO.: FC-15-48896-00

DATE: 20160226

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Kimberly Perks Applicant

– and –

Emmanuel Lazaris Respondent

Applicant, Self-represented

Respondent, Self-represented

OCL B. Steinberg

HEARD: February 10, 2016

RULING ON MOTIONS

McGEE J.:

Nesting Orders between unmarried parents: can they exist and what if they end up causing more conflict?

[1] The respondent father wants an immediate end to a nesting schedule ordered October 7, 2015. He wants his common law spouse of 25 years evicted from the family home – which is registered in his name alone. He wants their 24 year daughter out as well. Their 10 and 12 year old sons can stay – he’ll take custody.

[2] He argues that a nesting order cannot exist between unmarried spouses, or more specifically, in the absence of an order for exclusive possession. I adopt the reasoning in Greenough v. Greenough[^1] that a nesting Order can exist, and reference other circumstances in which a non-titled common law spouse can continue to reside in a family home pending trial.

[3] I then find that in these circumstances, it is no longer in the children’s best interests to continue with the nesting Order. It is exposing them to increased adult conflict. I make an Order pursuant to section 28 (1) of the Children’s Law Reform Act that the father shall only have access to, or contact with the children while more than 250 metres from the family home.

Background and Events to Date

[4] Ms. Perks and Mr. Lazaris are the parents of a 24 year old daughter and 12 and 10 year old sons. The family has been financially successful. The Richmond Hill family home is owned outright. The parties have a vacation property in Florida and had modest savings. The mother has been, and continues to be a fulltime parent.

[5] Their 25 year relationship ended in late 2013. The formal date of separation resulted from an altercation. The father moved to his mother’s residence and the mother and children continued in the home. The pre-separation history of domestic confrontations, police attendances and relationship instability has since diminished; but as is borne out in these reasons, has not abated.

[6] The mother issued this Application in August of 2015. In his Answer, the father identifies his spouse of 25 years as his “girlfriend.” He does not believe that she is entitled to anything – care of their sons, spousal support, property division or possession of the family home. Neither does he think any payment of child support is necessary. He wants Ms. Perks and their daughter to vacate the home, and leave him to raise the boys.

[7] An urgent motion was followed by two early Case Conferences, which preceded lengthy, self-styled motions by these self-represented parents. Relevant to this determination is the following summary.

[8] In a motion heard October 7, 2015, the father sought to terminate an Order granting the mother exclusive possession of the Richmond Hill home. That Order had been granted at an urgent Case Conference before it was fully appreciated that the parties were not married and the home was registered in the name of the father. He also asked for extensive orders placing him back in the home and granting him custody of the boys.

[9] Justice Healey heard the motion and agreed that the court lacked jurisdiction to grant exclusive possession. She then set out in well considered reasons the challenges posed to the children within this fluid and somewhat chaotic environment.

[10] Ultimately, she made an Order stabilizing the children’s residence in the home by creating a nesting schedule between the parents. The schedule had a protocol for transitions and required a communications book. The father’s request for occupation rent was dismissed. The mother was not to renovate, alter, destroy or remove any of the structure or furnishings of the home.

[11] In a motion heard November 9, 2015 the mother sought orders for custody, an access schedule, child and spousal support for the children, and contribution to orthodontic and post-secondary expenses for their daughter.[^2] The motion was adjourned to January 13, 2016 to allow the father to file an updated Financial Statement and response. Costs were reserved.

[12] In a motion heard January 13, 2016, Justice Kaufman gave lengthy reasons supporting a multidirectional mutual Order preventing either parent from discussing the case with the children, disparaging a parent, posting on social media or using the children as messengers. The assistance of the OCL was requested.

[13] No order was made for child and spousal support. The father had now placed his income into question; but, committed to covering the home expenses and making the vehicle available to the mother. Justice Kaufman was thus prepared to defer determination of his income and formal support obligations to trial. He directed the parents to schedule a Settlement Conference.

[14] Contrary to that direction, the father brought two motions to be heard on February 10, 2016. The first seeks a finding of contempt on his view that the mother has caused damaged to the house and certain furnishings. The mother denies the allegations. She believes that the father is looking for any excuse to try and get her out of the home.

[15] The father’s second motion seeks lengthy relief resulting from a marathon of grievances. Some of the highlights:

(a) termination of the nesting order;

(b) custody of the boys;

(c) exclusive possession of the family home, (irrespective of the fact that Justice Healey previously found that it was not an available order for either party);

(d) termination of the mother’s use of the car, (irrespective of his commitment to provide a vehicle to the mother within the order of the previous month);

(e) for a payment of occupational rent, (irrespective of that claim being earlier dismissed by Justice Healey); and

(f) orders that the mother “surrender” her ownership of the Florida property, and that authorities within that jurisdiction be prevented from interfering with his use of the property.

[16] The father had scheduled both motions as a combined one hour hearing. Early in the day he was invited to pick the two to three grounds on which submissions could be completed within the scheduled one hour. As the motion progressed, even those grounds could not be fully heard. A priority matter was signalled by recently appointed children’s counsel.

[17] The OCL alerted the court that the CAS Family Service Worker had met with the boys at their school that morning.[^3] She had received alarming disclosures. Her case note was made available. The court permitted the worker to provide viva voce testimony that afternoon, with an opportunity for both parents to cross-examine.

[18] The school interviews disclosed that the father has been deliberately and vigorously bringing the boys - particularly the oldest - into the conflict. The oldest had specifics of the day’s court attendance, had been peppered with calls from his father over the past period, accused by him of being a liar and a traitor when he did not take his side, made to listen to his father’s views of his mother – and indeed all women and the court system, and compared unfavourably to his more “trustworthy” younger brother.

[19] The father told his oldest that he would “win,” and that if he doesn’t win “he will go to the house, change locks and not let anyone in.” The oldest related that he “barely responds to his father,” and that “it does not make him feel good.” He shared that if “he tells the truth [his father] freaks out and when he tells a lie he freaks out.” He “just wants his father to stop talking about this stuff with him.”

[20] It is trite to say that the father is in breach of the January 13, 2016 Orders to protect the children from adult conflict.

Next Steps in the Case

[21] Within the next month, the mother will be amending her Application to seek a trust interest in the family home. The case is being managed towards a May trial, with a Trial Management Conference scheduled for April 15, 2016. The Office of the Children’s lawyer has been recently appointed. Counsel anticipates a vigorous investigation over the next few months, as recent CAS interventions are examined, the children’s best interests are studied, and the children’s views and preferences are explored.

The Father’s Two February 10th Motions

[22] The motion for contempt is well outside the scope of a one hour motion. Findings are simply not available on these facts absent viva voce testimony, cross-examination, and ideally, some independent evidence. The father may schedule his contempt motion to an assignment court, to be organized as a long motion with oral evidence. Alternatively he may prefer to address the alleged incidents within the trust claim to be heard at trial.

[23] The orders sought within the father’s second motion can be categorized threefold. First are orders sought that are not available in law. The second are temporary orders sought on issues that have already been determined on motion, and for which there has been no subsequent material change in circumstances. The third are the issues that can be determined on this motion.

[24] I find that only two grounds fit into the third category of the second February 10, 2016 Notice of Motion: the present nesting schedule and the claim for custody. The balance of grounds is dismissed.

Nesting Order

[25] Although nesting orders are commonly made in parallel with an order for exclusive possession, the latter is not a prerequisite to the former: see section 28 (1) of the Children’s Law Reform Act set out at paragraph 37 below.

[26] For example, in Greenough, neither party lived in the matrimonial home, so the court could not make an order for exclusive possession. Quinn J. reviewed the circumstances and decided that it was in the best interests of the children to reside in one home, with the parents alternating residence in the home based on a parenting schedule. He held that in an application for custody the court may “make such additional order as the court considers necessary and proper in the circumstances.” At para. 10, he stated, “It is part of the inherent jurisdiction of the court in custody cases to act on its own motion rather than remain mute where the best interests of children are at stake.” He concluded, at para. 15:

In the result, pending the completion of this trial, I make a temporary order that the children shall reside in the home of the mother. The father is entitled to exercise the same access that he currently enjoys, except he shall do so in the residence of the mother. When this occurs, the mother is to vacate her residence and go elsewhere to live and the father shall make his home available to her if she so desires.

[27] Neither is it a given that a non-titled spouse has no basis upon which to continue living in a family home post separation. The Family Law Act excludes common law spouses from the protection afforded by section 24, but other remedies exist. Three come to mind. If a common law spouse has a pending trust claim, there may be grounds for an injunction allowing him or her to remain in the home pending the outcome of the trial.[^4] Second, there is some authority that possession of a home can be a form of support under s. 34 (1) (d) of the FLA.[^5] Third, a restraining order per section 46 (1) FLA or 35 (1) CLRA, may be appropriate. In such occurrences the non-titled spouse’s occupation is an effect of the order, rather than its object.

[28] Nesting orders are the ultimate child centred parenting schedules. They minimize, if not eliminate transitions for children between their parents’ care. The house is theirs. At the same time, nesting orders can only be temporary plans. The end of a parents’ relationship ultimately means a separation of family finances and a reapportionment of assets. For children, it means a Mom’s home and a Dad’s home.

[29] Justice Healey’s October 7, 2015 nesting Order was a child centred and sensible plan pending determination of the financial issues. Justice Kaufman’s February 13, 2016 order built on the mother’s continued occupation of the home, use of the vehicle; and the father’s maintenance of the home and vehicle expenses as a temporary arrangement to hold the parties until trial.

[30] The mother continues to believe that a nesting order can work. She believes that it is a good compromise until the trust claim is determined. She will then be certain of her means to establish an independent residence.

[31] Mr. Lazaris’ view? Five words: it is driving him crazy. He finds every aspect of his weekly transitions to and from the home to be distressing. He is at a loss to understand how his spouse of 25 years is entitled to live in his home with his children. He does not want to share his house. He cannot resist conscripting their preteens into battle.

Harm to the Children

[32] A December 18, 2015 letter from York Region CAS reviewed the effect of the nesting schedule on the children. It references a number of police attendances and describes Mr. Lazaris’ conduct when leaving the home. The Society concludes that the children are feeling caught in the middle and recommends “that terms of the current Order be changed so as to reduce the children’s risk of exposure to the conflict between their parents and thereby reduce the risk of emotional harm to the children.”

[33] The risk of emotional harm is now actual emotional harm as evidenced by the February 10, 2016 testimony of the Family Service Worker. The children’s well-being is the priority of this court.

[34] Order to go terminating the nesting plan set out within the Order of October 7, 2015.

Claim for Custody

[35] There is no basis to make an award of custody to the father. He has no history as a caretaking parent. He is in breach of significant Orders of this court. His actions have ended a schedule that could have worked well for the children. He has not demonstrated any ability to separate out his sons’ interests from his own, or to recognize his sons’ need to be protected from the conflict. I dismiss his claim for temporary custody.

Ongoing Parenting Schedule

[36] To terminate the October 7, 2015 nesting Order is to leave in place an August 7, 2015 Order that the father continue to reside at his mother’s residence pending the next court attendance. It is not clear whether that Order ought to continue. It was intended to operate parallel to the mother’s exclusive possession, which is now identified as an unavailable order. There has been no subsequent order governing the father’s residence.

[37] Section 28(1) of the CLRA grants the following powers to the court in which an application is made for custody.

28.(1) The court to which an application is made under section 21,

(a) by order may grant the custody of or access to the child to one or more persons;

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child’s residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child’s passport, the child’s health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child. R.S.O. 1990, c. C.12, s. 28; 2009, c. 11, s. 12.

[38] In order to protect the children from exposure to adult conflict, I find that it is necessary to prohibit the father from attending at the home. He is unable to govern his personal conduct, or separate his interests from those of his children.

[39] There is no request at this time to limit the father’s access, or discourage a parenting plan that would have the children in his care away from the family home. That may change should the father continue to breach the terms of the February 13, 2016 order.

[40] It is worth emphasising that Justice Kaufman’s Order has the express intention of protecting the boys from adult conflict, while preserving and fostering their relationships with each of their parents. Compliance is a real opportunity. Non-compliance is an invitation to further sanctions.

[41] At this time, I make the following temporary Order:

1. The respondent father shall only have access to, or any contact with the children while at a distance of 250 metres or more from the family home located at 85 Castle Rock Dr. Richmond Hill, Ontario.

2. The mother or her designate shall deliver the children to a neutral location more than 250 meters from the home, from which the father will pick them up for the access period. The neutral location is to be agreed by the parties in writing.[^6] If they cannot agree, exchanges shall be conducted by Social Enterprise for Canada.[^7]

3. The access schedule is to be agreed by the parents in writing. If a schedule, or any terms of access cannot be agreed, a motion may be brought on 14 days’ notice. An Offer to Settle is to be served with the Notice of Motion.

4. If it is necessary to enforce the terms of paragraph 1 above by operation of a restraining per section 46 (1) FLA or 35 (1) CLRA the parties may direct a 14B Motion to my attention. The motion is to be on 7 days’ notice.

Costs

[42] The mother has been the successful party. If she wishes to pursue a claim for costs, submissions are to be filed by March 11, 2016, with any responding submissions to be filed by March 25, 2016. Reply submission if any, shall be served and filed by April 1, 2016. Submissions shall be limited to three pages, exclusive of a Bill of Costs and copies of any Offers to Settle. Submissions are to be filed by 14B Motion to my attention within the Continuing Record.

Justice H. McGee

Date Released: February 26, 2016

[^1]: 2003 2363 (ONSC) [^2]: She also sought in a motion to be heard November 9, 2015 orders for a finding of trust that were unavailable – as they had not been plead, an order for sale of the family home – unavailable as it is not listed in her name, and transfer of ownership of a vehicle. [^3]: The timing of which was coincidental. It had been scheduled by the FSW without knowledge of the father’s motion. [^4]: See Bathie v. Munro, 2002 CarswellOnt 3621, Kiteley J, Lewis v. Oriji, 2009 CarswellOnt 297, Blishen J. and Joyce v. O’Neill, 2008 CarswellOnt 7965 [^5]: Part III of the FLA applies to unmarried spouses, Part II does not. There is a view that s. 34 (1) (d) FLA cannot apply to unmarried persons. At the same time, several cases have accepted that a support order for a common law partner can include a term for exclusive possession of the couple's home. Justice de P. Wright reviewed this area of law in Williams v. Hudson (1997), 1997 24486 (ON SC), 33 R.F.L. (4th) 111, and granted leave to appeal on the basis of the uncertainty. However, the appeal was not pursued. The issue was again raised in Bathie v. Munro, 2002 CarswellOnt 3621 (S.C.), and Akman v. Burshtein¸ 2009 16574 (ON SC), [2009] W.D.F.L. 2645 [^6]: It is hoped that the Children’s Lawyer will be able to assist with the exchange location and the access schedule. [^7]: SEC operates the Supervised Exchange Program in York Region. They can be contacted at 1-844-373-4515. More information at http://www.socialenterprise.ca/supervised-access-services.