Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: TRACY MARIE GORE, applicant
AND: JEFFREY GORE, respondent
BEFORE: VOGELSANG J.
COUNSEL: Leonard G. Reich for the applicant Meredith Rady for the respondent
HEARD: August 10, 2016
ENDORSEMENT
Introduction
1Ms. Gore seeks an order for exclusive possession of the parties’ matrimonial home (known municipally as 32914 Nagle Drive in Lucan, Ontario), temporary child support for two children, Samantha Jo Gore and Nicole Megan Gore (aged 18 and 16 respectively) and temporary spousal support.
2The parties began to cohabit in September, 1996 and married five years later. They separated in February, 2010. Interestingly, this application was commenced in September, 2011, over five years ago, but has proceeded not at all effectively.
3Except for some periods in 2011 and 2013, Ms. Gore and the children have lived in the Nagle Drive residence with Mr. Gore. At present, their oldest son, Joshua, lives with them. That boy, now aged 19, apparently is taking a hiatus from school and Mr. Gore is helping to support him financially.
4Subsections 24(3) and (4) of the Family Law Act, R.S.O. 1990, c. F.3 are formulated as follows:
Order for exclusive possession: criteria
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 or other enforceable support obligations;
(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.
Best interests of child
(4) 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 reasonably be ascertained.
5In Menchella v. Menchella, 2012 CarswellOnt 3510 (Sup. Ct.), McGee J. affirmed the equal right of each spouse to possession of the matrimonial home on marriage breakdown: s. 19(1) of the Family Law Act. At para. 15, she said:
An order for exclusive possession is dramatic in effect, and highly prejudicial to the dispossessed spouse. An order for exclusive possession should not be made on a motion where there is conflicting evidence that requires findings of credibility that are only available at trial.
6The onus of proving that an order for exclusive possession of the matrimonial home is justified falls on the person seeking the remedy, in this case Ms. Gore: Rondeau v. Rondeau, 1979 CarswellOnt 323 (Co. Ct.). While the effect of the order sought is to evict a spouse from the matrimonial home, it is incumbent on the moving party to demonstrate that the continued shared use of the home is a practical impossibility or that the well-being of children is threatened: Ramson v. Ramson, 1988 CarswellOnt 1401 (Master). In addition, the party seeking the order will be obliged to demonstrate that the balance of convenience favours him or her: West v. West (1982), 1982 CanLII 4665 (ON SC), 28 R.F.L. (2d) 375 (Ont. H.C.); Campbell v. Campbell (1979), 1978 CanLII 3083 (ON SC), 6 R.F.L. (2d) 392 (Ont. H.C.). In determining the balance of convenience, “unpleasantness and inconvenience” will not be a sufficient ground to order a spouse from his or her own home: Tweed v. Tweed, [1990] O.J. No. 1440 (Ont. H.C.). In such a case there is a heavy onus on the moving party: Rofail v. Naguib, 2012 ONSC 931, additional reasons at 2012 ONSC 2117 (Sup. Ct.).
Background
7About four months after the separation, the parties entered into a separation agreement. Ms. Gore’s solicitor prepared the agreement which was executed by Mr. Gore, and the latter acknowledged that he was advised to obtain independent advice but refused. In the July 5, 2010 agreement, the parties determined that Nagle Drive would be listed for sale and sold and the ultimate distribution of the proceeds was set out. Ms. Gore waived spousal support and any claim to Mr. Gore’s employer pension and Mr. Gore was to pay child support in an amount greater than the table amount determined in the Federal Child Support Guidelines, SOR/97-175. Ms. Gore was to enjoy exclusive possession of the matrimonial home until the sale, and Mr. Gore was to pay her $53,000 in lieu of an equalizing payment with respect to their net family property at separation.
8None of the events contemplated in the separation agreement ever occurred. Through the following five years of unproductive litigation, Fate could not have conspired against the parties more unhappily. Mr. Gore says that Ms. Gore incurred credit card debt throughout the marriage, requiring him to pay $25,000 on her behalf. She then became indebted for a further $22,000 which he refused to pay. Ms. Gore disputes some of these allegations and accuses Mr. Gore himself of incurring substantial credit card balances. Whatever the truth, there is no doubt that the parties are, and have been, swallowed by consumer debt.
9The Nagle Drive property was promptly listed for sale but that process became a debacle as home inspection failures aborted every sales contract. Ms. Gore moved out of Nagle Drive – notwithstanding the exclusive possession provision in the agreement – and bought another house at 320 Beech Street in Lucan. Mr. Gore says he thought the house was for her and the children and he agreed to pay for new flooring, installation and painting to ensure the children were cared for but Ms. Gore returned to Nagle Drive in April 2011 without, he says, any notice to him. There is substantial conflict about some of these matters: Ms. Gore swore that she paid Mr. Gore back in cash for some of the Beech Street renovations and asserts that the parties agreed about her return to Nagle Drive.
10In September, 2012 Ms. Gore again moved out of the Nagle Drive home with the children, she says because Mr. Gore refused to perform the much needed and extensive repairs. Mr. Gore agrees that they had discussed selling the house again and that he promised to arrange for repairs and listing the property; however, he says he met with the realtor and learned the extent of the repairs needed was so significant that he did not have the money, being overwhelmed with debt. An application to obtain mortgage financing was rejected. He says he paid Ms. Gore between $250 and $500 weekly and paid additional expenses for the children, although Ms. Gore admits only to payments of $250 per week until January, 2013.
11Mr. Gore’s employer endured a strike of nine weeks’ duration in 2013, although he says he used credit cards and savings to continue to make the payments to Ms. Gore when he had no income.
12In August, 2013 Mr. Gore was diagnosed with stage 3-4 colon cancer. He stopped working to accommodate radiation and chemotherapy and claimed benefits from his long-term disability insurer. He endured an ileostomy for six months and had to undergo three reconstructive surgeries. In late 2013, Ms. Gore and the children moved back to Nagle Drive, again, Mr. Gore says, without any prior consultation.
13In all, Mr. Gore was off work for one year when he was sick, returning in September, 2014 against his doctors’ advice, because his employer was threatening to give his route to somebody else. In the period he was off, he says he continued to pay the expenses for the children and the matrimonial home. He says that Ms. Gore “was not prepared to engage in cost-cutting measures.” Because he received only about $2,500 monthly in benefits, he again relied on credit cards. Mr. Gore says he now owes over $33,000 which he cannot pay off. At times, he is unable to even meet the monthly minimum payments on the cards.
Analysis
14Mr. Gore’s financial statement, sworn three weeks before the motion, shows the following monthly payments by him (rounded):
Nagle Drive housing/utilities $1,670
automobile (used by children too) $1,010
cell phone charges for three children and both parties $1,000
household/pet expenses $1,400
gasoline and insurance (includes children’s) $1,010
miscellaneous children’s expenses $1,000
(school, basketball, Josh’s credit card)
$7,090
15Ms. Gore minimizes and disparages Mr. Gore’s monthly contributions, drawing attention to the payments and credit charges she makes for the children; but, if Mr. Gore is paying out over $7,000 with a net monthly income of $4,300, it is not hard to see how the huge debts accumulated. It is, unfortunately, obvious that granting the relief sought by Ms. Gore will not improve the lot of either party or help to lead them out of their predicament. Until the Nagle Drive property is somehow sold, their only choice might be to stay together in the home, notwithstanding the difficulties and inconvenience of that arrangement.
16The facts of this case bear a real similarity to those before Heeney R.S.J. in Gredig v. Dennis, 2012 ONSC 5223 (Sup. Ct.). In that case, the court declined to make the interim exclusive possession order sought by the wife or to order support as “both parties continue[d] to contribute to their joint living expenses.” With respect to the possession issue, Heeney R.S.J. framed the inquiry as follows:
22 The question of the best interests of the children, therefore, comes down to this: are they suffering as a result of the continuing cohabitation of their parents, such that an order for exclusive possession should be granted and the husband should be ordered to leave the matrimonial home?
23 The affidavit evidence of the wife makes general allegations of a "toxic" atmosphere in the home, and alleges that the husband treats her in a contemptible fashion in the presence of the children. However, there is almost no evidence of any specific examples of such conduct, where it could be said that the best interests of the children were compromised.
17While Ms. Gore goes out of her way in the affidavit evidence to paint Mr. Gore as a potentially violent individual, the only clear evidence is his admission to a charge of uttering a threat to Joshua following an argument, which resulted in the police removing him from the home in May, 2011. That charge was withdrawn eventually, after Mr. Gore completed the Changing Ways Programme.
18There is nothing clear or compelling in Ms. Gore’s material to satisfy me that violence as constructed in s. 24(3)(f) was perpetrated by Mr. Gore. Violence in that context must be such that it makes the continuation of joint cohabitation in the matrimonial dwelling impractical: Menchella v. Menchella, 2012 ONSC 6304 (Sup. Ct.), leave to appeal refused 2013 CarswellOnt 3031 (Div. Ct.). Similarly, there is no necessary nexus or link between the threatening charge involving Joshua over five years ago and the exclusive possession claim: Hutton v. Hutton, 2015 CarswellOnt 16471 (Sup. Ct.).
19I have discussed the absence of any real evidence demonstrating prejudice or suffering on the part of the older children, the paucity of any kind of indication of physical or emotional violence on the part of Mr. Gore and the bleak financial position of the parties. It seems to me that the written agreement in July, 2010, which included Ms. Gore’s right to exclusive possession, is quite irrelevant. Neither party attempted performance of any of the terms of the agreement and the basic object of the contract, the sale of Nagle Drive, was frustrated. In fact, in her September, 2011 application, Ms. Gore seeks an order setting aside the agreement.
20The last mandatory consideration is the availability of other suitable and affordable accommodation: Vander Hyden v. Vander Hyden, 1995 CarswellOnt 1962 (Gen. Div.). With Mr. Gore’s rocky financial circumstances and the continuing burden of Nagle Drive, it is hard to imagine him having any ability to acquire any other residence. Ms. Gore owns the Beech Street house, but has rented it to tenants who remain in occupation. To recover the property for her own use, Ms. Gore would have to go through a lengthy process involving the Provincial rental board to obtain a favourable decision removing the lessees and allowing the owner to take possession.
Conclusion
21In the result, the motion for exclusive possession is dismissed. As in Gredig v. Dennis, supra, there will be no order for child or spousal support, as Mr. Gore is paying for a very large share of the expenses for the whole family.
Costs
22Counsel for Mr. Gore may deliver point form submissions concerning costs to my assistant within 45 days, after which Ms. Gore will have 30 days to respond. Mr. Gore is at liberty to deliver a brief reply within 15 days thereafter.
“Justice Henry Vogelsang”
Justice Henry Vogelsang
Date: November 9, 2016