CITATION: Yetman v. Tenaglia, 2016 ONSC 579

COURT FILE NO.: FS-16-407723

DATE: 20160122

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jill Elizabeth Yetman, Applicant

AND:

David Armenio Tenaglia, Respondent

BEFORE: Kiteley J.

COUNSEL: Bryan Smith, for the Applicant

Daniel R. Furlan for the Respondent

HEARD: January 21, 2016

ENDORSEMENT

[1] This is an urgent motion by the Applicant for various orders, the most significant of which is an order that she have temporary exclusive possession of the matrimonial home. The Respondent has served his own motion in which he too seeks temporary exclusive possession of the matrimonial home or alternatively a temporary “nesting arrangement in the matrimonial home”. For the reasons that follow, I dismiss both motions for temporary exclusive possession and make an order for a nesting arrangement.

[2] The parties lived together from January 2004 and married on February 13, 2008. They have two children: Benjamin born October 24, 2008 and Chloe born August 5, 2011. The parties separated on September 25, 2015 as a result of the Applicant informing the Respondent that she would not continue with the relationship. Since then the Applicant sleeps in the upstairs bedroom and the Respondent sleeps in the spare bedroom in the basement. As a result of events which occurred on Saturday January 16, 2016, the Applicant left the home with the children and has stayed with her mother in a one bedroom apartment since then.

[3] The Notice of Application was issued on Tuesday January 19 and on that date it was served on the Respondent’s counsel along with the notice of motion returnable January 21 and the affidavit of the Applicant sworn January 19.

[4] The Respondent’s affidavit is dated January 20. At the request of the Respondent, two nannies provided affidavits: GS who worked full time from 2010 to 2012 and since September 2015 has worked from 3:00 p.m. to 6:00 p.m.; and LD who worked full time from 2012 to 2015.

[5] The Applicant provided another affidavit sworn January 20, 2016 in which she responded to the Respondent’s affidavit. Attached to her affidavit is a transcript of a recording that she made using her cell phone during part of the events that occurred on January 16. In addition, the Applicant provided a second affidavit of GS in which she clarified several paragraphs of her earlier affidavit primarily by enhancing the Applicant’s role in the parenting and diminishing the Respondent’s role. I observe that nannies are invariably in an impossible situation when employers ask that affidavits be signed.

[6] Counsel for the Applicant relies on section 24(3) of the Family Law Act and particularly (f) any violence committed by a spouse against the other spouse or the children. Counsel takes the position the Respondent has demonstrated historical controlling and abusive behavior that came to a head on January 16 and as a result, the Applicant had to leave with the children for purposes of safety. He argued that the transcript of the tape recording demonstrates the angry and abusive behaviour of the Respondent all of which was manifested in front of the children who became upset with the circumstances. Mr. Smith pointed out that the Respondent was careful in what he denied about the events that occurred on January 16 and particularly those events captured on the tape recording and in the transcript. Mr. Smith submitted that the circumstances on January 16 demonstrate that this is a powder keg that could blow at great risk to the children and an order for exclusive possession is needed to avert that outcome.

[7] Counsel for the Respondent takes the position that the Respondent has been neither controlling nor abusive, that he does not have an anger management problem, and he argues that, having recorded at least part of the events on January 16, the Applicant was using the event strategically in order to gain the upper hand in a motion such as this. Although his client had asked for temporary exclusive possession, the main submission he made was that neither parent should have exclusive possession but a nesting order should be made.

[8] In arriving at my conclusion on these motions, I take the following into consideration.

[9] First, in support of the Applicant’s motion, on the basis of the transcript and without listening to the recording itself, I accept that the events reflected in the transcript (which focused on the whereabouts of a stroller!) demonstrate that the Respondent was very angry; that the Applicant was also very angry; that the children were in the middle of this most unfortunate episode and that the parents collectively were unable to separate the issues between them from the best interests of the children.

[10] Second, in the recording, the Respondent said twice that he was recording the event yet he did not provide his own recording or transcript; nor did he depose that he was not recording. That leaves me with a question whether he recorded more or less than she did and if he did, why has he not produced it. But these affidavits were delivered very quickly, and I am not prepared to draw the inference suggested by Mr. Smith that the Respondent was withholding evidence that would support her position.

[11] Third, based on the evidence of the Applicant and the Respondent, and on the transcript, at no time were the children in any danger. The Applicant may well have felt intimated and, as she deposed, he threatened her and she called the police. But I am not persuaded that the children were at risk of harm.

[12] Fourth, as is clear from the evidence of both nannies, both parents have been and are involved with the children. While GS amended her affidavit to clarify that the Applicant had the greater role, there is no question that the Respondent was an important participant in child care.

[13] Fifth, since the separation accepted as September 25, 2015, the Applicant and Respondent have lived in the same home. They text each other multiple times a day including when they are both in the home. The Respondent attached 86 pages of texts between them starting July 13, 2015 and ending January 18, 2016 which indicate civilized and respectful communications even after the events of September 25. There were some lapses but in general, while sleeping in separate bedrooms on separate floors, they collaborated to provide the children with consistent care. They calendared their own events that impacted the caregiving schedule, noted that the children would be with the Respondent on alternate weekends and hence with the Applicant on the alternating weekends and they modified as need arose. In recent weeks, there were probably more communications that were testy but they were clearly managing. From that I infer that what happened on January 16 was an aberration.

[14] Sixth, the Applicant left on the evening of Saturday January 16. The Respondent began asking to see the children. As of the hearing of this motion mid-day on Thursday January 21, the Applicant had “allowed” him to see the children once only, on Tuesday, January 19 from after school on condition that he return them to the Applicant at her mother’s home at 7:15 p.m. Given the parenting collaboration in the preceding months and the lack of evidence that the children were at risk of harm on January 16, I consider that withholding of the children unfortunate.

[15] I am not persuaded that the Applicant has met the onus to establish that the very significant order for temporary exclusive possession which she is seeking should be made for a period of 5 weeks. That would result in a significant change in the parenting status quo which is not justified on this record.

[16] By coming to this conclusion I am not making the following findings: that the Respondent has an anger management problem; that the Applicant orchestrated the event on January 16; that one or the other parent is the primary caregiver or that they are equal caregivers. In order to arrive at my conclusions I need not make such findings and I ought not to do so on a conflicting record prepared under time pressure. To make any of those findings would be unfair to the party against whom the finding was made. The parties did agree to the involvement of the OCL and I made a referral on January 21, 2016. If the OCL accepts the referral, some of those issues may be considered.

[17] The case conference is scheduled for February 26, 2016. I will adjourn this motion to a date after the case conference and establish an arrangement that will continue for 5 weeks.

[18] Counsel focused on whether I grant exclusive possession or a nesting arrangement but neither of them made detailed submissions as to what schedule would be put in place. The children have been out of their home and their beds for 6 days and the parties need an immediate ruling on the motion. There is no time for receiving submissions on the schedule except to observe that given the ages of the children, week about might be too long. Having made the order, I am optimistic that they will be able to establish a schedule that responds to the needs of the children such as 2-2-3 or 4-3 or 7-7. If they are unable to agree, the default is 4-3.

ORDER TO GO AS FOLLOWS:

[19] The motions for temporary exclusive possession are adjourned to March 8, 2016 at 10:00 a.m. before me if I am available.

[20] Pending the return of that motion, the Applicant and Respondent shall participate in a “nesting arrangement” such that each occupy the matrimonial home with the children on an equal basis. If the parties are unable to agree on the schedule for equal sharing of time (such as 2-2-3 or 4-3), it will be on a 4-3 day rotation.

[21] The parent who is not the caregiver will not remain in the matrimonial home.

[22] The Applicant shall return the children to the matrimonial home today, January 22, 2016 no later than 5:00 p.m. The children shall be with the Respondent for no less than the weekend, ending Monday morning at school or day care.

[23] Costs of these motions are reserved to the hearing of the motion.

Kiteley J.

Date: January 22, 2016