Court File and Parties
NEWMARKET COURT FILE NO.: FC-15-47643-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jean-Luc Petit Applicant
– and –
Michele Anne Petit Respondent
COUNSEL:
Jaret Moldaver, for the Applicant
Michael J. Stangarone and Ryan Kniznik, for the Respondent
Melanie J. O’Neill, for the Children
HEARD: January 27, 2016
Ruling on motions
jarvis j.:
1The spousal parties have brought motions that, in essence, deal with their children’s temporary custody in the context of which parent should be granted exclusive possession of the matrimonial home. The respondent (the “mother”) brought her motion soon after a disclosure teleconference was held with the children’s lawyer: the applicant (the “father”) responded with a motion of his own. A request to adjourn the motions made by the father to permit questioning and to schedule a long motion in accordance with local practice was denied. Oral reasons were given.
Background
2The parties were married on January 13, 1996 and separated somewhere between January 30, 2013 (according to the mother) and May 31, 2013 (according to the father). Nothing relevant to the motions now before the court turns on the separation date as the parties have continued to reside in the matrimonial home since.
3There are four children of the marriage, namely, Mylene (eighteen years of age), Emmanuel (sixteen years of age), Noele (twelve years of age), and Lorene (ten years of age). On March 16, 2015, the Office of the Children’s Lawyer (the “OCL”) was appointed to represent the children’s interests. An investigation was undertaken pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, and on December 4, 2015 the lawyer representing the children convened a disclosure meeting by conference call with counsel. The parties were told, among other things, that the OCL was very concerned about the intolerable home environment in which the children were living (“toxic” was an adjective used by counsel when the motions were argued). Concerns were also expressed about the father’s mental health. This concern had been earlier identified mid-July 2015 when the children’s lawyer advised counsel that, after meeting with the father, she was supportive that he undertake a psychiatric assessment/evaluation.
4Accompanying the parties’ affidavits for their motions was an affidavit from the clinical investigator engaged by the OCL which outlined her interviews of the parties, the third-party information she reviewed, her observations of the children with their parents, and the children’s views and preferences. That affidavit also summarized the OCL’s position. Briefly stated, that position supported the mother’s request for temporary exclusive position of the matrimonial home, that a psychiatric assessment of the father be ordered, and that there be limited contact between the youngest three children and their father except what more time the children might request. What that affidavit confirms, and what the parties’ affidavits reveal, is a home environment of intolerable stress affecting the children, occasionally involving physical violence between the sixteen year old son and his father and less so between the parties.
5The mother alleges that the father has created a realistic estrangement between himself and the children: the father accuses her of orchestrating a campaign to alienate the children from him. He agrees though with his wife and the OCL that physically separating the spousal parties would be in their children’s best interests but that, even while acknowledging how poor their relationship is with him, he hasn’t the financial resources to live elsewhere in a home suitable for the children and him. Although employed, the father earns very little: most of the family income is earned by the mother who has been obliged to work three jobs to meet the family’s expenses.
Current Home Environment
6Despite disagreement about the authors and origins of their conflict, particularly as that has affected, and clearly continues to affect, the children, the parties do agree that the children are suffering in the current home environment. The father acknowledges this, several examples of which include the following (the quoted references are taken directly from the father’s affidavit sworn January 25, 2016):
(a) The relationship between the father and the children is distant and has suffered since separation (para. 16);
(b) The children are experiencing “anxiety, stomach issues and other ailments” (para. 53). The father alleges that he is not responsible, that “the conflict in the home has been caused by [the mother]”;
(c) There are arguments between the children and their father (paras. 49, 50, 71) and between the parents in the presence of the children (paras. 44, 58), one incident allegedly involving the mother punching the father (para. 54);
(d) The children are “disrespectful and combative” toward him (para. 57);
(e) The children do not respect the father’s authority and no longer abide by his disciplinary “restrictions” (para. 58(d));
(f) Four times since the parties separated there were physical altercations between the party’s son and his father which involved “hitting and punching, etc.”. The father alleged that the son was the aggressor and that the mother was responsible for the son’s violence toward him. While there was no evidence what precipitated any of these incidents, including their dates, the inference is that the father was not responsible for his conduct (para. 58(g);
(g) … a physical separation [of the parties] would be best for the children (para. 90);
7The foregoing is a representative, not comprehensive, sampling of the evidence about the children’s residential circumstances and, as noted, is drawn solely from the father’s affidavit. Underpinning the father’s position is his complaint that the cause of the children’s distress is the mother’s campaign to alienate them from him. The children’s views, as expressed by the OCL “should be given little weight” according to the father because the investigation undertaken was “compromised”, it focused on the mother’s, not the father’s, concerns and was procedurally flawed (i.e., no collaterals or other persons having knowledge and experience with the family were consulted), falsely premised (i.e., that the father was suffering from mental health issues) and replete with hearsay. The father acknowledged the youngest child’s distress but maintained that she and the other children had been alienated from him (para. 73). He was concerned about the children’s emotional well-being and development and wanted this court to order individual and family counselling to “commence the healing process” (para. 57). Awarding the mother exclusive possession of the matrimonial home would marginalize him even further in the children’s lives.
Psychiatric Evidence
8Responding to the mother’s allegations about the father’s mental health and the OCL’s mid-July 2015 support that he have a psychiatric assessment/evaluation, the father consulted an Ottawa psychiatrist who prepared a Psychiatric Assessment Report dated January 9, 2016. This was first produced to counsel for the mother and the OCL less than two days’ before the parties’ motions were argued on January 27.
9Dr. Quan is a licenced medical practitioner in Ontario and a Fellow of the Royal College of Physicians and Surgeons of Canada with a specialist certification in psychiatry. He reviewed the pleadings sent to him by father’s counsel, the father’s written explanations and responses to the mother’s allegations, met with the father on one occasion, and conducted testing. Dr. Quan became involved about two weeks after the December 4, 2015 teleconference between the OCL and the parties’ counsel. Despite the OCL’s early view that psychiatric input was needed, the father had not arranged one by early November 2015. No mental health professional was engaged until about two weeks after the early December 2015 teleconference.
10Dr. Quan’s report concluded that,
… There is no evidence of any perceptual disorders. [The father’s] thought content and thought processes were unremarkable. He displayed a clear sensorium and full orientation. Mr. Petit displayed good intellectual capacities and he continued to function at this level. He had demonstrated excellent concentration and working memory. ... His judgement and insight were unimpaired.
On the basis of the assessment of Mr. Petit on the 30th of December 2015 and on the basis of the history provided, it was very evident that he was free of any signs of serious psychopathology. Mr. Petit was mildly depressed and understandably so because of his current circumstances. He did experience symptoms of an Adjustment Disorder with Mixed Disturbance of Emotions and Conduct when he was on a trip to India in 2011. His symptoms continued for a period of time upon his return to Toronto but dissipated with the passage of time. Mr. Petit has been contending with a very strained and difficult marriage beginning in 2001. He now fears that his wife is making a very concerted effort to alienate his children from him. He is making a very concerted effort to remain very actively involved in his children’s lives. He certainly would benefit from counselling, however. Apart from the adjustment disorder five years ago, Mr. Petit has not experienced any significant psychopathology. He also denied any family history of mental illness.
11In a letter to father’s counsel dated January 20, 2016, Dr. Quan opined that given
… the history of the marriage relationship provided to me by Mr. Petit, it does seem that his former wife is coping with significant psychological problems of her own. In view of this and in the interest of the welfare of the children, she should undergo either a psychological or psychiatric assessment as well.
12Throughout his evidence the father relies on Dr. Quan’s report as confirming that he does not suffer from any psychiatric illness, and that the mother should be psychiatrically assessed. It is noteworthy that even though Dr. Quan was invited by father’s counsel to contact the mother and the OCL, there is no evidence that was ever done – certainly there is no reference of any such effort made by Dr. Quan in his report, nor any explanation why in the circumstances of this case that kind of inquiry was never undertaken or even considered. Somewhat disingenuously, the father has criticized the OCL’s clinical investigator for not reaching out to family therapists having experience with the family, although it is clear from the clinician’s affidavit that she spoke with the children’s pediatrician and obtained information from the local Children’s Aid Society and police.
Sale of Matrimonial Home
13On August 17, 2015, McGee J. ordered that the mother pay, on a without prejudice basis, and subject to a later accounting, the matrimonial home expenses and that the father contribute $1,000 per month to them. Leave to appeal that Order by the mother was denied. Costs of both motions ($5,000 each) were awarded to the father.
14The father seeks the sale of the matrimonial home before trial and that, pending completion of any sale, no order be made for exclusive possession. As already noted, he states that he does not have sufficient resources to fund a home suitable for the children and him. The mother is prepared to defer, or suspend, the father’s contribution to the house expenses as ordered to leave him with sufficient cash flow to acquire alternate residential accommodation pending trial, albeit not comparable to the matrimonial home.
15A review of the parties financial statements suggest that the mother may owe the father an equalization payment of about $184,000, but most of the difference in the spouses’ net family properties is represented by a $322,000 (approx.) net value for the mother’s federal government pension. While there may remain outstanding disclosure issues, there do not appear to be any other assets of significance. There is about $355,000 estimated net equity in the matrimonial home (before taking into account any realtor’s commission). Each party has substantial post-separation date debts.
16In her affidavit the mother provided listings of alternative house and apartment rentals in the Stouffville area (where the matrimonial home is located). The father dismissed these even though many cost less than what McGee J. ordered him to contribute to the mother’s housing expenses for the family.
17While a sale of the matrimonial home is not the inevitable outcome of any trial, its likelihood in the circumstances of this case, and given the prevailing law, is high.
Analysis
18The court’s primary concern is the children’s best interests. In Hayes v. Goodfellow, 2011 CarswellOnt 3048 (S.C.J.), MacKinnon J. was tasked with a motion by a father to vary a temporary custody order in circumstances where there were allegations of parental alienation. In addressing that issue, the court observed as follows:
[149] Counsel referred me to an article titled “Alienated Children and Parental Separation: Legal Responses in Canada’s Family Courts.” For the purposes of their article, the authors provide a definition of alienation,
In this context, alienation refers to situations where a parent’s hostility and negative feelings towards a former partner influence the child and lead to reject a parent, thereby making access difficult or impossible to exercise.
[150] They also distinguish between pathological and realistic estrangement.
“Pathological alienation” is emotionally harmful, and occurs when there is an unjustified rejection by a child of one parent. When a child understandably refuses contact with a parent, for example due to abusive conduct, this is “realistic estrangement”. In some cases one parent alone should be seen as having responsibility for the poor relationship between the other parent and child, but often both the parents and children share responsibility.
Alienation can range from mild to severe depending upon the child’s resistance to the target parent.
19It is noteworthy that, as described by the clinical investigator in this case, all of the children want to have a relationship with their father, and wish that it improve. Equally, all expressed unhappiness and distress. None said that they don’t wish to spend time with him, although nowhere near as much as the father wishes. They are all clearly, almost palpably, unhappy and stressed. They have been exposed to violence in the home.
20There are important issues involving each party’s credibility and it is neither possible nor appropriate at this stage to determine which party’s testimony is more reliable. What is plainly obvious, though, is that the level of conflict in the matrimonial home is intolerable and adversely impacting the children’s well-being. In Leckman v. Ortaaslan, 2013 CarswellOnt 7604 (S.C.J.), a case very similar to this in which the court heard, and granted, a motion by the mother for exclusive possession of the matrimonial home, an assessment was underway but had not been completed. A therapist’s report (Parker) set out the preliminary results of the assessment. Horkins J. concluded,
[40] I find that the preliminary results of Ms. Parker’s assessment of Anna demonstrate that it is not in Anna’s best interests for her father to continue to reside with the family in the matrimonial home. Clearly, the continuation of this unfortunate living arrangement is detrimental to Anna’s well being. Ms. Parker states that she is “extremely concerned about Anna’s state of mind and the amount of stress she appears to be under”. She concludes that “any efforts to resolve the conflict between her parents as quickly as possible would be in [Anna’s] best interests”.
[42] The specific details that Ms. Parker sets out in her preliminary assessment provide more than amply cause for concern. Furthermore, if the current living situation continues, there is a risk that Anna’s mental well-being might deteriorate further. As the report notes, “Anna is feeling so angry, depressed and hopeless that she may think of suicide, at times, as a way out of the difficult situation she experiences herself to be in.” The respondent argues that Anna is not currently suicidal. Rather, the report says his daughter “may” think of suicide. The court is not prepared to wait and see if Anna’s situation deteriorates further before dealing with this exclusive possession motion. An adjournment of the motion would place Anna at continued risk and such delay is not in her best interests. As the court stated in Menchella v. Menchella, [2012] ONSC 6304 at para. 33, “[t]he best interests of a child are paramount in determining an order for exclusive possession.” (italics added)
21The father maintains that the mother has undermined, and continues to undermine, the children’s relationship with him, that she doesn’t support a relationship between the children and him. Most of the alienation cases on which he relies involve trial or appellate decisions in which a full evidentiary record was available, and the parties’ credibility could be thoroughly assessed, neither of which obtains in the motions now before this court: I.M.M.S v. D.J.S., [2010] B.C.J. No. 413; Rogerson v. Tessaro, 2006 15126 (ON CA), [2006] O.J. No. 1825; Anderson v. Anderson, 2005 NSSC 94, [2005] N.S.J. No. 176.
22In Ampuero v. Ampuero, 2006 ONCJ 595, [2006] O.J. No. 4652, Baldock J. made a temporary order that granted the mother custody of the children who had been in the de facto custody of their father for about nine months. The children had aligned themselves with their father. The OCL represented the children. Baldock J. observed that the evidence of the clinical investigator indicated that the father in that case showed “no insight into his behaviour and no capacity to change.” The learned judge also noted that the “position taken [by the father]…is indicative of a man who takes absolutely no responsibility for the present situation whatsoever”. Moreover, while the father had not deliberately engaged in alienating behaviour he had “not accepted responsibility for the fact that he has allowed for this very sad situation to happen, and worse, for it to have continued for so long”. While those comments were made in the context of a father’s actions contradicting his assurances that he would support the children’s relationship with their mother, and the father in this case argues that they apply to the mother, I am unable to accept that the views of the children in this case should be so contextually minimized as the father contends.
23I cannot, nor do I intend to, determine whether the father has mental health issues that affect the children’s relationship with him and how these could, if true, possibly impact, the children’s future parenting. Suffice it that the issue has been raised, there is prima facie evidence of mental illness and Dr. Quan has concluded that these concerns do not appear to be clinically remarkable. But I am troubled by Dr. Quan’s evidence nonetheless, and the father’s trumpeting the doctor’s report as finally disposing of that issue. I am troubled because:
(a) Given what the pleadings sent to him disclose, and counsel’s invitation to contact the wife and OCL for input, there is no evidence why Dr. Quan ignored that path of inquiry or why, if that was not relevant, it was not so noted: see Porter v. Porter, 2009 18686 (ON SC), 2009 CarwellOnt. 2133, 70 RFL (6th) 381 (Ont. S.C.);
(b) The father’s sister is a psychiatrist. There was evidence that she was concerned about her brother’s mental health before the parties separated, even forwarding to him a book titled “Overcoming Paranoid and Suspicious Thoughts: A Self-Help Guide Using Cognitive Behavioural Techniques”. Although admitting that his sister was a psychiatrist, the husband never addressed why he had been sent this book and, just as important, there is no evidence that the sister was ever mentioned to Dr. Quan as a knowledgeable colleague with possible insight about her brother relevant to the assessment;
(c) Most troublesome is Dr. Quan’s recommendation that the mother needed a psychiatric assessment, this being in support of the father’s cross-motion for that relief. In my view, that recommendation, based as it was on solely the husband’s history of the marriage relationship (as Dr. Quan noted), was improper and partial to the husband’s interests in this litigation. It has diminished the weight and overall reliability of Dr. Quan’s assessment.
24The evidence does not support the father’s request for a psychological or psychiatric assessment of the mother. It is not necessary either that an order be made, as the mother suggests, to have the husband psychiatrically assessed. That relief was asked in circumstances where it was unclear whether an assessment would be voluntarily undertaken or even provided. Notwithstanding the concerns noted above about Dr. Quan’s report, how much weight (if any) to be given it at trial will be a matter for the trial judge to determine. Both parties’ motions to have the other assessed are dismissed.
25As for the father’s request to sell the matrimonial home before trial, the children’s best interests mandate that their emotional well-being not be further disturbed at this time. While the court certainly has the jurisdiction to order a jointly-owned matrimonial home be sold before trial (see Smith v. Smith, 1989 8796 (ON SC), [1989] O.J. 1280; 22 R.F.L. (3d) 173 (Ont. S.C.)), I am not prepared to make that Order in the circumstances of this case. As noted by the Court of Appeal in Martin v. Martin (1990), 1990 12225 (ON SC), 31 R.F.L. (3d) 210 (Ont. Ct. Cen. Div.), cfm’d at (1991), 1991 12830 (ON SCDC), 34 R.F.L. (3d) 173 (Ont. Div. Ct.), rev’d in part at (1992) 7402, 1992 7402 (ON CA), 38 R.F.L. (3d) 217 (Ont. C.A), such an order “should only be made in cases where, in all the circumstances, such an order as appropriate … and not be made as a matter of course”: see also Freeman v. Freeman, 2013 ONSC 4934. The father’s interest in hoping to acquire in the future a residence where he can accommodate the children must yield to their interest in an emotionally safe and familiar home. The father’s motion to sell the home at this time is dismissed.
26Lastly, the wife has requested temporary exclusive possession of the matrimonial home. Sections 24(1)(b), (3)(a), (c), (e), (f) and (4) of the Family Law Act, R.S.O. 1990, c. F.3, provide as follows:
Order for possession of matrimonial home
24(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;
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;
(c) the financial position of both spouses;
(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 the child
24(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.
27Section 24(2) of the Children’s Law Reform Act, R.S.O. 1990 c. C.12, more expansively defines what a child’s “best interests” include. Considerations must be given to, among other things, “the love, affection and emotional ties between the child and … persons involved in the child’s care and upbringing (Section 24(2)(a)(iii)), and “the child’s views and preferences if they can be reasonably ascertained” (Section 24(2)(b)).
28The husband contends that excluding him from the matrimonial home will marginalize his relationship with the children and that they will suffer. They are already suffering.
29He also claims, not without some justification, that he cannot afford suitable and affordable accommodation and still comply with the Order made by McGee J. that he contribute $1,000 monthly to the mother’s costs of maintaining the matrimonial home. However, his cash flow will allow him, in my view, to acquire acceptable, modest accommodation in the neighbourhood to the matrimonial home that, while not being anywhere comparable to that residence, will nonetheless be sufficient to allow for contact between the children and him.
30A combined Settlement/Trial Management Conference has been scheduled for April 18, 2016 with a view to a trial proceeding during the sittings of this court commencing May 16, 2016. Since the likelihood of the sale of the matrimonial home is strong (the court has no jurisdiction to favour one joint-owner over the other) and the parties’ antipathy to each other is palpable, the inconvenience and possible prejudice to the father must, as elsewhere noted, yield to the children’s best interests. In my view, those interests are served by awarding the mother temporary exclusive possession of the matrimonial home.
31The parties are urged to deal with the OCL in how best to manage the children’s response to the possessory order now made. Any issues that may hereafter arise dealing with the children’s time with their father shall be directed to me on seven days’ notice by either party or the OCL.
Disposition
32Accordingly, the following order shall issue:
(1) The mother shall be given exclusive possession of the matrimonial home effective March 1, 2016;
(2) The primary residence of the children shall be the matrimonial home;
(3) No order is made for custody or access but the mother shall be authorized to proceed, without the father’s consent, to forthwith arrange counselling for Lorene as recommended by her pediatrician;
(4) The parties’ motions for a mental health assessment of the other are dismissed;
(5) The father’s motion to sell the matrimonial home is dismissed;
(6) Without prejudice to the husband’s obligations to contribute to the wife’s expenses for the matrimonial home and the wife’s right to have her payment of those expenses taken into account when finally determining the parties’ financial obligations to each other in these proceedings, the husband’s contributory obligation pursuant to the Order of McGee J. dated August 17, 2015 is suspended effective February 5, 2016;
(7) The mother shall advance to the father on or before February 15, 2016 the sum of $1,500 to assisting his making a deposit for his new accommodations. This sum shall also be taken into account similar to subparagraph (6) above and shall operate as a credit to the mother;
(8) Each party shall be entitled to question the other for a maximum of three hours, subject to further direction if sought by me by way of a Form 14B Motion on ten days’ notice to the other party. Questioning of the clinical investigator is also permitted by both parties, not to exceed three hours in the aggregate. The investigator’s notes shall be provided to each party not less than seven days prior to the scheduled questioning date;
(9) All questioning shall be held after March 1, 2016 and concluded before April 11, 2016;
(10) No order for child support shall be made at this time. This is without prejudice to either party’s child support claims at trial retroactive to the date of separation;
(11) The father’s request for an Order that the parties and children attend for individual and family counselling is dismissed;
(12) A combined Settlement/Trial Management Conference shall proceed on April 18, 2016.
33No order for access by the father has been made at this time. That issue is left for the parties to arrange once the father’s new accommodations have been secured, and pending further input from the children to be ascertained by the OCL.
34Lastly, I am grateful to counsel for their focused presentation and timely attention to the pressing needs of this family.
Costs
35If the parties are unable to resolve the costs of these motions, each party shall no later than February 29, 2016 file with the court their written submissions limited to three double-spaced pages along with offers to settle (if any), bills of costs and any authorities upon which they may be relying. All costs submissions are to be filed in the Continuing Record.
Justice D.A. Jarvis
Date Released: February 2, 2016