CITATION: Alexopoulos v. De Caria, 2016 ONSC 2183
NEWMARKET COURT FILE NO.: FC-16-50310-00
DATE: 20160330
ONTARIO
SUPERIOR COURT OF JUSTICE
FAMILY COURT
BETWEEN:
Eugenia (Nia) Alexopoulos
Applicant
– and –
Maurice Nicole De Caria
Respondent
Jaret Moldaver, for the Applicant
Erica Lien, for the Respondent
HEARD: March 23, 2016
RULING ON MOTION
gilmore J.:
Overview
[1] This is the applicant’s motion for exclusion possession of the matrimonial home (MH) and its contents. The applicant, Eugenia Alexopoulos (“Nia”) also seeks an order for an inventory of items removed from the home by the respondent, Maurice Nicole De Caria (“Maurice”) post separation, a restraining order, payment of expenses for the MH, temporary support and costs.
[2] Maurice brings a cross motion seeking exclusive possession of the MH, disclosure and costs.
[3] On March 2, 2016, Nia moved for leave to bring her motion on an urgent basis prior to a case conference. Jarvis, J. granted leave for Nia to bring her motion and Maurice to bring his cross-motion on an urgent basis but only to deal with exclusive possession of the MH, child support and spousal support with no other issues to be argued except at the discretion of the motion’s judge.
[4] The case conference in this matter is scheduled for April 8, 2016 at 9:30 a.m.
Background Facts
[5] The parties separated on January 11, 2016 after a 19 year marriage. They have one child, Alexia, born November 6, 2000, aged 15.
[6] The separation was precipitated by an incident in which Nia is alleged to have assaulted Maurice. Nia alleges that her marriage was plagued with verbal, emotional and physical abuse. The abuse included pushing, shoving, punching, kicking and strangling. Nia alleges that in 2002 she reported an incident to police in which Maurice punched and kicked her to the point of breaking three of her ribs. Maurice was arrested and charged with three counts of assault. Maurice points out that those charges were withdrawn.
[7] On the night of the assault incident in January 2016, Nia deposed that Maurice pinned her to the floor with his knee. When she found it hard to breathe, she grabbed on Maurice’s gold chain in self-defence.
[8] Maurice alleges a completely different scenario. He recounts that Nia has a history of physical and verbal abuse against him including throwing scissors and glasses at him, pulling his hair, punching him in the mouth and kicking him. On the night of the alleged assault incident on January 10, 2016, Maurice submits that Nia kicked a coffee table at his knees, threw a glass at him, pulled off his jacket and tried to choke him in the course of an argument. Maurice experienced shortness of breath and went to the police. He was taken to emergency for treatment and the police charged Nia with assault.
[9] Since separation Maurice has been living in the MH at 68 Park Crescent in Richmond Hill. As a result of the assault allegations against Nia, she is restrained from contacting Maurice or attending at the MH. Nia and Alexia have been residing with Nia’s sister in Richmond Hill since separation. An amendment to Nia’s undertaking to police has been obtained allowing exceptions in accordance with a family court order.
[10] The parties’ evidence differs with respect to Alexia. Nia deposes that Alexia does not choose to spend significant time with her father due to her father’s behaviour. Maurice alleges that Nia has manipulated Alexia and alienated him from her. Both parents allege that the other has involved Nia in their conflict.
[11] The parties have made many other allegations against the other too numerous to recount in the context of this ruling. Suffice it to say that the allegations range from Nia alleging that Maurice abuses drugs and is subject to manic rages and extreme mood swings to Maurice alleging that Nia has made false allegations against him to the police while she is the one with serious anger issues to the point where she has punched and choked him. Some of this conflict between the parties has taken place in front of Alexia.
[12] It is within the context of this disturbing background that the parties bring their respective urgent motions.
Exclusive Possession
The Position of the Applicant
[13] Nia submits she can no longer stay with her sister as her aunt and uncle are returning from Greece and expect to stay with Nia’s sister. She and Alexia cannot stay with Nia’s mother as her home is in a state of disarray with only one available bed.
[14] Nia’s main concern is Alexia. According to Nia, Alexia feels displaced and has experienced stress as a result. Alexia’s school performance has suffered. Alexia wants to be back in her home with own “things” and her dog. She is angry with her father because she is aware of the circumstances of her mother’s arrest. Nia alleges that Maurice does not appear to care about Alexia’s distress and seems content to remain in the large family home on his own. Alexia will not move back to the MH without her mother. Alexia has been in the full-time care of her mother since separation.
[15] Nia advised the court that Maurice is rarely at the home in any event. He primarily resides in Perth, Ontario where he is building a new subdivision. When he travels to Richmond Hill to visit Alexia he is able to stay with his sister.
[16] Nia agrees to cooperate with the listing and sale of the home including showings and communicating with the real estate agent as needed.
[17] Finally, Maurice rarely sees Alexia and involves her in conflicts with Nia. He has had only eight overnight visits with Alexia since the date of Nia’s arrest and has cancelled visits. It is in Alexia’s best interests that she and her mother are allowed to return to the MH pending sale. Nia does not agree with the “nesting arrangement” proposed by Maurice. In her view it would necessitate personal contact between them which may lead to conflict in front of Alexia.
The Position of the Respondent
[18] The respondent argues that the matter of exclusive possession is not as urgent as the applicant would have the court believe. The MH is for sale which will lead to inevitable disruption for Alexia in any event. Further, the allegations made by Nia about Alexia’s school performance have little to do with the allegation that Alexia feels “displaced” and more to do with Nia’s concerted effort to instil fear in Alexia about her father and talking to her about this court proceeding.
[19] According to the respondent, Alexia wants to spend time with both parents. She has the code to the door of the MH and is free to go there anytime.
[20] Maurice submits that Nia can live with sister or in her mother’s three bedroom house. There is no evidence confirming when the aunt and uncle are returning from Greece.
[21] With respect to the issue of domestic violence, Maurice points out that the affidavits in that regard are completely contradictory. He insists that Nia has a history of anger and points to the fact that the outstanding charges remain before the courts.
[22] Finally, Nia cannot say that she is in dire financial straits and needs to move back to the MH for that reason. She took Alexia to Hawaii on a vacation since separation and she has had access to significant funds from the sale of one of Maurice’s completed homes. Maurice, however, takes a practical approach and agrees that if exclusive possession is not ordered, a nesting arrangement should be implemented whereby Alexia remains in the home and the parties rotate in and out equally.
Ruling on Exclusive Possession
[23] Section 24 of the Family Law Act requires that when determining an order for exclusive possession the court shall consider:
(a) The best interests of the children affected;
(b) Any existing Orders under Part I;
(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.
[24] In determining the best interests of a child, the court shall consider:
(a) The possible disruptive effects on the child of a move to other accommodation; and,
(b) The child’s views and preferences, if they can be reasonably ascertained.
[25] The prevailing consideration in this case is Alexia’s best interests. The conflict concerning the allegations which each party is making against the other cannot be resolved in the context of this motion. What is uncontradicted is that Alexia is not living at her home and clearly wants to. While I accept that she has unlimited access to the home, I also accept that she does not wish to reside there alone when her father is away nor does she want to reside there for extended periods without her mother. She has chosen to live with her mother who has been her caregiver during the marriage.
[26] I accept the principles set out in Gonzalez v. Trobarovic, [2014] O.J. No. 4384 at 32. Uncorroborated criminal complaints by one spouse against another which result in the removal of one spouse from the home may require intervention of the court to ensure that the removed spouse’s property rights are protected and that the children’s best interests are safeguarded. I also adopt the principle in that case which cautions that a criminal charge against a spouse lies within the exclusive control of the Crown and the accused may not be in a position to immediately disclose his/her defence. That is, an uncorroborated criminal charge may not be given the weight suggested by the respondent when a child’s best interests are to be considered.
[27] Keeping those principles in mind, I find that it is in Alexia’s best interests to remain in the MH until sale. While Maurice denies that Alexia’s poor school performance is related to living outside the home, that issue must be considered within the entire concept of Alexia’s displacement. Alexia has been subjected to extreme parental conflict, her parents’ separation and leaving her home; all recently and within a short period of time. Every effort must be made to “normalize” her environment and give her the best chance to succeed at school and reconnect with her father. Even if this is only a few months until the sale of the home, it provides some short term stability for Alexia to ready her for the next transition.
[28] Turning to the parenting arrangement, I find that a nesting arrangement is the most appropriate and accords best with Alexia’s interests. Such an arrangement can reflect the larger role that Nia has had in Alexia’s life while allowing Alexia some relaxed time to be with her father without feeling any pressure about how much time she has or has not spent with him.
[29] I find that both parties have alternate accommodation available although Nia’s is less available for long term stays. I also accept that while Maurice has accommodation available to him in Perth it is not meant to be permanent.
[30] It must also be kept in mind that this is a temporary order which is not intended to prejudice either party’s rights or position while the litigation is ongoing.
Contents of the Home
[31] Nia is concerned about the dissipation of household contents in her absence. Specifically she alleges that Maurice has deliberately destroyed her computer which contains irreplaceable photographs of Alexia’s dance competitions. She further alleges that Maurice has removed the pool table (her niece sent her a photo of it via Snapchat), and items from the garage such as tools, a snow blower, landscaping equipment, files and bicycles. Nia is also very concerned that Maurice has removed extremely valuable items from the home such as gold and silver bars stored in the family safe.
[32] Maurice seeks to adjourn the issue of household contents until the upcoming case conference.
Ruling on Household Contents
[33] The parties are at an early stage of litigation. In order to assist the case conference judge both parties should prepare a list of household contents which they have removed since separation. A further discussion can then be held at the case conference on this issue.
Restraining Order
[34] Nia submits that notwithstanding the provisions of her release, Maurice has been attempting to contact her and provoking her to breach her release conditions. Nia denies attending at the MH in contravention of her release provisions other than with the police in order to collect her personal items.
[35] Nia alleges that in fact the separation was the result of her attempts to defend herself from Maurice’s vicious assault on January 12, 2016.
[36] Maurice submits that a restraining order is not necessary.
Ruling on Restraining Order
[37] The relationship between the parties at present is dysfunctional and toxic. The texts from Maurice to Alexia filed as Exhibit “G” to Nia’s affidavit sworn February 22, 2016, are disconcerting and reveal a level of hostility by Maurice against Nia that needs to be contained. The nesting arrangement ordered will ensure no physical contact. A mutual restraining order will go some way to ensuring that the communication between the parties remains child focussed.
Support
[38] Nia seeks a temporary lump sum payment of $25,000 which is to be used as a credit for support until such time as Maurice provides proper disclosure.
[39] She also seeks an order requiring Maurice to cover the costs of the MH until sale including any costs related to the necessary repair to ready the home for sale.
Ruling on Support
[40] It is difficult at this stage to make any order for support given the lack of disclosure. Nia has funds she can draw upon for her day to day needs but Maurice should continue to pay the basic household expenses as he has been since separation.
[41] This is a matter which can be explored more fully at the case conference.
Orders Resulting from the Motion
[42] The parties’ respective motions for exclusive possession are dismissed.
[43] Alexia shall reside full time in the matrimonial home commencing immediately.
[44] The applicant shall reside in the matrimonial home full time except for alternate weekends from Friday at 7:30 p.m. to Sunday at 5:00 p.m.
[45] The respondent shall reside in the matrimonial home on alternate weekends commencing on Friday at 8:00 p.m. and ending on Sunday at 4:30 p.m.
[46] This order is meant to ensure that no physical contact occurs between the parties on changeover.
[47] The respondent’s alternate weekend residence in the matrimonial home shall commence on Friday April 8, 2016 at 8:00 p.m. The respondent shall leave the matrimonial home within 24 hours of the release of this ruling to permit the applicant and Alexia to resume their residency there. Counsel shall communicate to ensure there is no physical contact between the parties during this changeover for Alexia’s sake.
[48] A copy of this order shall be sent to the Crown Attorney’s office in Newmarket to advise of the permitted exception to the applicant’s release with respect to the matrimonial home.
[49] Both parties shall fully cooperate with the sale of the home including but not limited to:
(a) Co-operating with the real estate agent regarding showings and offers;
(b) Accepting reasonable offers and signing documents to complete the sale;
(c) Maintaining the home in a clean and presentable state for showings;
(d) Completing any necessary repairs (Maurice); and,
(e) Retaining a mutually agreeable lawyer to act on the sale.
[50] The net house sale proceeds shall be held in trust by the lawyer acting on the sale until court order or the parties sign a joint direction re: funds.
[51] The parties shall each prepare a list of household contents which they have removed since separation or which have been removed on their behalf by Alexia. Counsel shall exchange the list forthwith and prior to the case conference. The respective lists should be attached to each party’s case conference brief.
[52] There shall be a mutual restraining order prohibiting contact between the parties save to communicate solely about issues relating to Alexia’s health, school or well-being.
[53] Paragraph 4 of the endorsement of Jarvis, J. dated March 2, 2016 shall continue.
[54] The respondent shall continue to pay the expenses for the matrimonial home including mortgage, taxes, insurance, the joint credit card debt and utilities until the date of sale. The applicant’s portion of these expenses shall form a credit towards any support obligation owed to her by the respondent for that period.
[55] The respondent shall pay for the costs of any agreed upon and necessary repairs to ready the home for sale. Such repairs shall be conducted only during the time that the respondent resides in the home. Alternatively, the parties may agree to hire a third party to complete the repairs. The agreed upon third party may attend as needed. The cost of the agreed upon repairs shall be equalized between the parties upon the sale of the home.
[56] The parties shall exchange any remaining disclosure forthwith to ensure that a meaningful case conference can be held on April 8, 2016.
Costs
[57] Nia seeks costs of $22,500 for this motion and the appearance before Jarvis, J. This is an amount between partial and full indemnity costs and represents the preparation of four affidavits, a factum, case book, two appearances and significant research. It includes HST, disbursements and attendance on the within motion.
[58] Maurice seeks partial indemnity costs of $6,578.41. There are also the costs of Maurice’s first counsel Mr. Henry. His legal fees totaled $5,224.67 which at a partial indemnity rate would be in the range of $3,100. The respondent’s counsel also seeks the cost of her appearance at the motion which, including waiting time, was five hours. At her partial indemnity rate this would be an additional $1.035.00. The total sought is therefore $10,713.41 inclusive of HST and disbursements.
[59] Overall, neither party had significant success. Exclusive possession was not granted to either party but Nia was granted more time at the home because of her role as the primary caregiver to Alexia. The respondent was reasonable in his request for a nesting order in my view. Mia was successful in her request for an urgent motion prior to a Case Conference.
[60] With respect to the other relief sought, no specific amount of support was ordered and a mutual restraining order was made. Overall, Nia had slightly more success but not the type of success that would merit anywhere near the costs she requests. The focus of the resulting orders was Alexia’s best interests pending sale and not the parties’ individual complaints about the other.
[61] In my view a large costs order at this point would only entrench the parties further in their polarized positions. Further, the contradictory affidavit material made it impossible for the court, at this early stage, to arrive at anything but very preliminary conclusions on the facts. As such, Maurice shall pay to Nia costs in the amount of $2,500. These costs are payable upon the sale of the home and payable from Maurice’s share of net sale proceeds.
Madam Justice C.A. Gilmore
Released: March 30, 2016