Court File and Parties

Court File No.: 574/16 Date: 2017-04-07 Superior Court of Justice – Ontario

Re: Robert Bradley Hill, Applicant And: Sarah Glennie Hill, Respondent

Before: Emery J.

Counsel: Grace Sun, for the Applicant Bruce A. Gray, for the Respondent

Heard: March 13, 2017

Reasons for Decision

[1] There are two motions before the court. The respondent, Sarah Glennie Hill brought a motion first returnable on November 15, 2016 in which she seeks a number of temporary orders including:

a. Sole custody of the child Paula-Jamieson Rose Hill, born on August 18, 2014; b. Child support; c. Spousal support; and d. Exclusive possession of the matrimonial home and contents at 6 Atto Drive in Guelph.

[2] In response, Mr. Hill has brought a motion for summary judgment seeking a final order for:

a. Shared custody of Paula-Jamieson on a week-about basis; b. In the alternative, specific access in the event that joint custody is awarded with the child to reside primarily with Ms. Hill; c. Sale of the matrimonial home; and d. Other relief relating to support.

[3] On November 29, 2016, Justice LeMay made an order on consent that granted temporary relief to Ms. Hill, including exclusive possession of the matrimonial home commencing December 15, 2016. The temporary order also provided that Mr. Hill shall pay all mortgage payments, property tax, property insurance, heat, electricity, water, and basic cable related to the matrimonial home, as well as Ms. Hill’s current cellphone charges, in lieu of payment of child support and spousal support until further order.

[4] The order further provided that Paula-Jamieson shall reside with and be in the day-to-day care and control of Ms. Hill, with specific access to Mr. Hill.

[5] Justice LeMay ordered Ms. Hill to advise Mr. Hill on or before March 3, 2017 if she found a third party to purchase his interest in the matrimonial home. The order also restrained Mr. Hill from depleting any property under his possession or control, and required him to preserve all such property.

[6] The two motions were otherwise adjourned as long motions to be heard on March 13, 2017.

[7] Justice LeMay’s order requested the assistance of the Office of the Children’s Lawyer to investigate, and to make recommendations to the court on all matters relating to the custody of, or access to Paula-Jamieson. The Office of the Children’s Lawyer has now written to the court to advise that the request to investigate and report has been declined.

Orders Requested at this Time

[8] Ms. Hill filed a factum in which she has set out the temporary orders she now seeks on her motion. These temporary orders contemplated that Paula-Jamieson reside primarily with her, with specific access to Mr. Hill, as well as for interim child support and spousal support totalling $2,500 a month. Ms. Hill also seeks an order granting her exclusive possession of the matrimonial home, and an order dismissing Mr. Hill’s motion to list and sell 6 Atto Drive.

[9] Mr. Hill requests that the court dismiss Ms. Hill’s motion, and that he be granted summary judgment for the orders he seeks on his motion. The final orders he seeks are set out in his factum as follows:

79. An order that the Father and the Mother have shared custody of the child of the marriage, namely, Paula-Jamieson Rose Hill born August 18, 2014 with the child being with the Father and the Mother on alternating weeks or “week about basis” (7 days);
80. In the alternative, an order that the Father and the Mother have joint custody of the child with her primary residence to be with the mother with specified access to the father as follows: a) Alternate weekends from Friday at 3:30 p.m. to Sunday at 7:30 p.m. commencing December 10, 2016 and every other weekend thereafter. If the Monday following the Father’s weekend is a statutory holiday, then the access shall be extended to Monday at 7:30 p.m.; b) Each Wednesday from 3:30 p.m. to Friday at 3:30 p.m. c) Halloween – commencing 2017 and each odd-numbered year from 4:30 p.m. to 7:30 p.m. d) Christmas (i) In even numbered years commencing 2016, from 3:30 p.m. on December 24th to 1:00 p.m. on December 25th, from 3:30 p.m. on December 27th to 3:30 p.m. on December 31st and from 3:30 p.m. on January 1st to 7:30 p.m. (ii) In off numbered years commencing 2017, from 1:00 p.m. on December 25th to 3:30 p.m. on December 27th, from 3:30 p.m. on December 31st to 3:30 p.m. to January 1st. e) Spring Break (when the child is attending school) (iii) Every even numbered year, from Monday to Friday of the week the child is off from school. The mother will have the child in odd numbered years from Monday to Friday of the week the child is off from school. f) Summer months (July and August – when the child is attending school) (iv) Each parent shall have two non-consecutive weeks (7 days = one week) to spend with the child. The father shall notify the mother in writing by no later than May 31 of each year as to which weeks he is seeking. The father will have priority in choosing his weeks each year as the mother is not employed. g) Thanksgiving – in odd numbered years, the child will be with the father on Thanksgiving Day from 9:00 a.m. to 7:30 p.m. h) Father’s Day – every Father’s Day from 7:00 a.m. to 7:30 p.m. regardless of the regular schedule. i) Any other access the parties may agree to.

Sale of the Matrimonial Home

81. An order that if the Mother is unable to secure the financing necessary to purchase the house from the father by March 20th, 2017, then the house shall be listed for sale by March 27th, 2017 pursuant to the Partition Act by way of summary judgment at a listing price to be agreed upon by the parties or as recommended by the listing agent; the parties shall accept any reasonable offers that is within 5% of the listing price with a closing date not to exceed 60 days from the date of acceptance of an offer;
82. An Order that is the house is to be listed for sale, then the Father and the Mother shall both be responsible for the carrying costs of the house from the date of listing until the closing date.

Spousal Support

83. The father shall pay spousal support to the mother based on his 2016 income indicated in his T4, and not the three-year average, once the Mother takes over payments of the carrying costs of the matrimonial home as specified in paragraph 6 of the interim order dated November 29, 2016.
84. The father shall pay child support based on shared custody or joint custody and his income for 2016, and not the three-year average, and the Child Support Guidelines once the Mother takes over payments of the carrying costs of the matrimonial home as specified in paragraph 6 of the interim order dated November 29, 2016.
85. For so long as he is employed and has available to him, the Father shall name the mother and the child as dependents on any medical and dental coverage for so long as each of them is qualified to be covered under the employer’s health and dental plan.
86. Any other relief that the court deems just and reasonable.
87. Costs on a substantial indemnity basis.

Background

Material Facts

[10] The parties had lived together since 2007 or 2008, depending on who is recalling the facts, when they married on August 8, 2009.

[11] Ms. Hill was diagnosed with Multiple Sclerosis in 1994. Mr. Hill was fully aware of Ms. Hill’s medical condition when they married.

[12] A child of the marriage, Paula-Jamieson, was born on August 18, 2014. Paula-Jamieson is therefore two and half years old at the present time.

[13] According to Ms. Hill, her pregnancy with Paula-Jamieson accelerated her Multiple Sclerosis. Before she became pregnant, Ms. Hill could walk with the help of a cane or crutch. However, she has suffered a reduction of her mobility since Paula-Jamieson’s birth. Her legs tire quickly and she requires the use of a wheel chair. Because of the accelerated effects of the Multiple Sclerosis, Ms. Hill has not been able to work since she graduated from university. She is currently unemployable.

[14] According to Mr. Hill, Ms. Hill chose not to stand or to walk after her daughter’s birth even though she was informed by her doctors that she was capable of standing and walking. She chose not to use the walker that the MS Society provided to her. She refused to strengthen her legs on a treadmill purchased for her. Instead, she has decided to sit in her wheel chair all day, and as a result, her legs have atrophied.

[15] The family home at 6 Atto Drive in Guelph was purchased in April 2014 as the previous home owned by the parties had been unsuitable for Ms. Hill. The home at 6 Atto Drive is a bungalow, and was purchased and specifically adapted to suit Ms. Hill and her mobility. It is an open concept design with hallways and airways wide enough for her to navigate by wheelchair.

[16] The home is equipped with a wheelchair ramp outside that allows her to enter and exit the home.

[17] When Paula-Jamieson was approximately 15 months old, the parties agreed to hire Brooke Smith to assist with caring for Paula-Jamieson. Brooke Smith was hired as an assistant care giver because Mr. Hill works every day from 6:30 a.m. to 3:30 p.m., and because Ms. Hill’s mother, Paula Ferraro, was unavailable to assist with Paula-Jamieson’s care five days a week.

[18] Ms. Hill states that Paula-Jamieson is “very emotionally attached to her”. Ms. Hill states that although she spends most of the time in her wheel chair, she has adapted to her physical challenges and is capable of caring for Paula-Jamieson with some assistance provided by Ms. Ferraro. Ms. Hill has been assisted with caring for Paula-Jamieson by Ms. Ferraro, and by Brooke Smith in the past.

[19] Mr. Hill has provided evidence that he was a primary caregiver to Paula-Jamieson since birth until the date of separation. Mr. Hill was responsible for changing Paula-Jamieson’s diaper in the middle of the night when she was an infant. He was responsible for buying groceries, cooking dinner, tidying the house, and preparing bottles for the day. He states that he fed Paula-Jamieson when he was home, and bathed, changed and put Paula-Jamieson to sleep, all of which he did on a daily basis. Mr. Hill states that Ms. Hill is incapable of these functions by virtue of her physical limitations.

[20] Mr. Hill has also given evidence that he has cared for Ms. Hill by running her bath and by picking her up to put her in the bathtub, and then picking her up from the bathtub when she is done bathing. He states that he is the one who cleaned the dishes. On weekends, he would drive Ms. Hill and Paula-Jamieson to go shopping, sightseeing or to visit family or friends.

[21] According to Ms. Hill, it was Mr. Hill who decided in May 2016 that he wanted to terminate the matrimonial relationship. Mr. Hill states that he finally agreed that the parties should separate as it was Ms. Hill who had repeatedly brought up that option in conversation prior to June 2016. Be that as it may be, the parties agree that the marriage broke down and they began living separate and apart on or about June 1, 2016 even though they remained living under the same roof.

Analysis

[22] At the outset of the motions, Ms. Sun advised the court that Ms. Hill seeks only temporary relief on her motion. Mr. Gray advised that Mr. Hill is seeking a final order on summary judgment in his motion for custody and access of Paula-Jamieson, and the immediate listing for sale of the matrimonial home. In the alternative, he seeks an order of a temporary nature for custody and access, and for his support obligations.

[23] I propose to consider the relief that Ms. Hill has requested of a temporary nature except where similar or contradictory relief is requested by Mr. Hill in his motion for summary judgment. In the case of Mr. Hill’s request for a final order on similar or contradictory issues, I must first determine if it is appropriate to grant summary judgment, or if I find there to be a genuine issue requiring a trial with respect to that issue. If I find there to be a genuine issue requiring a trial, I must then decide what temporary order would be appropriate to make having regard to the relief requested on each motion.

[24] In Afolabi v. Fala, 2014 ONSC 1713, I discussed how the approach and principles set out in Hryniak v. Maudlin, 2014 SCC 7, are applicable to motions for summary judgment in family law. That decision was released before Rule 16 of the Family Law Rules was amended to provide enhanced fact finding powers to the court similar to those that can now be found in Rule 20.04 of the Rules of Civil Procedure. Now that Family Law Rule 16 has been amended, the powers of the court to fully apply the approach directed by the Supreme Court of Canada in Hyrniak are available on motions for summary judgment.

[25] The Court of Appeal, in part of its decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 left undisturbed by Hryniak, described the function of the trier of fact at trial this way:

[47] As these passages reflect, the trial judge is a trier of fact who participates in the dynamic of a trial, sees witnesses testify, follows the trial narrative, asks questions when in doubt as to the substance of the evidence, monitors the cut and thrust of the adversaries, and hears the evidence in the words of the witnesses. As expressed by the majority in Housen, at para. 25, the trial judge is in a "privileged position". The trial judge's role as a participant in the unfolding of the evidence at trial provides a greater assurance of fairness in the process for resolving the dispute. The nature of the process is such that it is unlikely that the judge will overlook evidence as it is adduced into the record in his or her presence.

Summary Judgment v. Temporary Order

[26] Mr. Hill seeks summary judgment on his claim for sole custody of Paula-Jamieson. In the alternative, he seeks an order for joint custody of his daughter with Ms. Hill.

[27] Justice Karakatsanis stated that the approach set out in Hryniak generally applies to all motions for summary judgment. Paragraphs 49, 50 and 57 from Hryniak set out where the court can find there to be no genuine issue requiring a trial on a motion for summary judgment:

[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[50] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[57] On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and (2.2) can provide an equally valid, if less extensive, manner of fact finding.

[28] The fundamental question for the court to determine on whether summary judgment should be granted is to determine if there is no genuine issue with respect to a particular issue requiring a trial. The law is clear in the civil context that on a motion for summary judgment, the responding party to a summary judgment motion must put his or her best foot forward by showing his or her evidentiary cards. The responding party cannot merely contend that he or she will have better evidence at trial. The courts have held that a party resisting a motion must “lead trump or risk losing”. In the final analysis, the court on the motion for summary judgment is entitled to assume that the evidence filed on the motion is all the evidence the parties would rely upon if the matter were to proceed to a conventional trial.

[29] The court in a family case now has enhanced fact finding powers under Family Law Rule 16(6.1) under the amendments made to Family Law Rule 16 on May 2, 2015. Those enhanced fact finding powers include the power to assess credibility of witnesses, to weigh evidence given by parties and to draw inferences from the written material. In the event that viva voce evidence is required, the court now has the power under Family Law Rule 16(6.2) to order a “mini trial” for the parties to give evidence in court on those issues specified by the judge. The availability of all of these powers presumes the underlying precepts of fairness are already met.

[30] Despite the approach directed by the court in Hryniak and the amendments to Family Law Rule 16, there are circumstances where summary judgment may be inappropriate. One such circumstance arises in a dispute between parents as to the custody of or access to a child, where the best interest of the child are the sole consideration for the court and the relevant evidence may not be available at an early stage of the case. Another circumstance may arise where evidence should not be given only by affidavit because it lacks the real life dimension of hearing the evidence of a parent and any witnesses called by a parent to testify in court, to be cross-examined, and even to answer questions from the court.

[31] From all of the evidence filed with respect to Mr. Hills motion for summary judgment on custody and access, I am unable to make a final decision on the custody and access arrangement that would serve Paula-Jamiesons best interests. In several respects, the affidavit evidence filed by each Mr. Hill and Ms. Hill is inconsistent and contradictory. At the mother-in-law level, the affidavit evidence filed by Paula Ferrero and Nancy Rosalie Hill is categorically inconsistent and contradictory. The affidavits filed by other witnesses, such as Brooke Smith and Christie Wiman, is limited, and in certain ways selective. I would require hearing viva voce evidence from the parties and each of the witnesses those parties might call to determine whether joint custody would serve Paula-Jamieson`s best interests, or whether one parent should be given sole custody of Paula-Jamieson, with generous access to the other.

[32] The requirement of viva voce evidence is further underscored by the fact that the Office of the Children`s Lawyer has declined to provide its involvement to investigate and report to the court. This uploads a greater function to the court to hear all necessary evidence, including expert testimony, in order to determine the best interests of the child.

[33] I do not have confidence from the affidavits and other evidence filed on the motion that I am able to find the necessary facts on which to apply the law to determine what final order would serve Paula-Jamieson’s best interests. Due to the circumstances of the parties before the court, it would be difficult, if not impossible, for me to make such findings, assess the credibility of the parties, weigh their evidence or draw inferences of fact.

[34] I also consider that it would not be in the interests of justice to order a mini-trial of the custody and issues at this time. To order a mini-trial would unnecessarily curtail the evidentiary process for each party to assemble facts and to call witnesses to prove those facts or to reject the evidence of the other party at this time. This case was commenced less than one year ago. It is at an early stage where it would be unfair to require Ms. Hill to prepare for and present evidence at a mini-trial that would be akin to an abbreviated version of a full fledge trial. This is particularly so given that none of the affiants have been cross-examined to date.

[35] The Court of Appeal in Combined Air described the importance for each party to put his or her best foot forward. However, the court also recognized it would not be in the interest of justice for a party to meet that evidentiary requirement if a motion for summary judgment was brought before disclosure was made and fact finding procedures have been deployed:

[57] However, we add an important caveat to the "best foot forward" principle in cases where a motion for summary judgment is brought early in the litigation process. It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross- examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.

[36] The courts have recognized that a party to a legal proceeding may be at a disadvantage if a summary judgment motion is brought too early in a proceeding. A motion for summary judgment to determine a central issue in a case at such a stage could be considered an unfair if the motion was brought before the proper evidence can be determined or ascertained. This is not only unfair to the responding party, it deprives the court from resolving the case on the merits where the best evidence may not be available at the time.

[37] The Office of the Children’s Lawyer has declined the request made in Justice LeMay’s order dated November 29, 2016 to become involved in this case. The lack of involvement by the Office of the Children’s Lawyer leaves the parties to engage the professionals they consider appropriate. They must now arrange for the affidavits of or testimony by witnesses they consider necessary to give evidence on the question of the appropriate custody arrangements for, and access to Paula-Jamieson. They must now each build the case they intend to present to the court.

[38] In my view, each of the parties bears a heavy mantel of responsibility to ensure that the best evidence possible is provided to this court on custody and access to make such important decisions. This responsibility is owed not only to the court: Paula-Jamieson deserves no less. Although Mr. Hill considers his material to provide the basis for a final order, I am mindful that Ms. Hill faces physical and medical challenges. She is also restricted by economic considerations because she is unemployed and without access to financial resources to prepare for these motions as though she were engaged at trial. This reality compounds the unfairness presented by the unequal abilities of the parties to present the necessary evidence for the court to make a final order regarding custody on the current record.

[39] I therefore conclude that it would not be fair to hear Mr. Hill’s motions for custody of and access to Paula-Jamieson on a summary judgment basis at this time. It would not only be unfair to Ms. Hill, and it may also not be in Paula-Jamieson’s best interest. Therefore, I shall consider the motions of each party for a temporary order only.

Temporary Order for Parenting

[40] Each of the parties seeks an order in the alternative for joint custody of Paula-Jamieson on an interim basis.

[41] Communication barriers are often real barriers to finding that joint custody will serve the best interests of a child. The Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 recognized that the professed inability of one parent to communicate with the other parent does not alone suggest that a joint custody order cannot be considered. However, hoping the communication will improve between the parties does not provide a sufficient basis for making an order of joint custody. It is the reasonable prospect that the parents will be able to communicate effectively with one another to meet the needs and circumstances of the child that makes joint custody even worthy of consideration.

[42] The Court of Appeal in Kaplanis explained that family law cases are by nature fact-based, and orders for custody and access are by their nature discretionary. In my view, this means that every case turns on its particular facts.

[43] In this case, there is insufficient evidence that the parties are able to set aside their differences to discuss and communicate matters of material interest for the sake of their daughter. On the facts given in evidence, joint custody, even on a temporary basis, is not an option on either motion.

[44] There is no evidence whatsoever about the decision making authority that each party seeks with respect to Paula-Jamieson. That evidence would have to be given in person so that the issue could be thoroughly explored through examination and cross-examination.

[45] There is no question that Paula-Jamieson has a close bond with each of her parents. Mr. Hill has given evidence that he has provided day-to-day care to Paula-Jamieson since her birth, and that he was the primary care provider to Paula-Jamieson when he returned home from work each weekday at 3:30 p.m. He states that Ms. Hill’s argument that he not be given custody even on a joint basis arises because of her sensitivities that a grown man should not be left alone with a little girl, and that because of her physical limitations, Ms. Hill is not physically capable of caring for Paula-Jamieson without assistance.

[46] There is no evidence filed on the motion that Mr. Hill has ever acted in any inappropriate manner towards Paula-Jamieson. The evidence is consistent throughout his evidence and evidence filed by Ms. Hill that he has provided proper and appropriate care to serve Paula-Jamieson needs and circumstances.

[47] Mr. Hill has also filed evidence that Ms. Hill is not capable of picking Paula-Jamieson up when she is crying and may need her care when he is not available. On another occasion, Paula-Jamieson ran out the front door after Ms. Hill had not closed it, requiring Mr. Hill to retrieve and recover their two year old daughter outside the house.

[48] Mr. Hill has also filed evidence that Ms. Hill removed Paula-Jamieson from the matrimonial home without notice to him in mid-June 2016. He states that between June 1, 2016 and October 28, 2016, he was only permitted by Ms. Hill to care for Paula-Jamieson for 8 days and nights. He states that he has been denied access to Paula-Jamieson until Justice LeMay’s order was made on November 29, 2016.

[49] Mr. Hill summarizes his position in paragraph 17 of his Factum as follows:

17. The father misses his daughter terribly. The father has cared for Paula-Jamieson from birth, who have a loving relationship with each other. This loving relationship between the father and Paula-Jamieson benefits the child, and therefore, the father is seeking shared custody of Paula-Jamieson. As Paula-Jamieson gets older and is more active, the mother will be less able to monitor and engage with her. For the best interest of the child, it is important for her to have equal quality time with the father who can take her swimming, skating, running and to other activities which will benefit to her overall development.

[50] The court, concerned only with the best interests of the child, shall take into consideration the willingness of the custodial parent to facilitate the child’s contact with the noncustodial parent. The court in A.A. v. G.G., 2010 ONSC 835 recognized that the “maximum contact principle”, set out in section 16(10) of the Divorce Act, is mandatory but not absolute. The powers of a judge on the custody or access claim are subject to awarding such contact as is consistent with the child’s best interests. Any other arrangements not in the best interests of the child should be restricted accordingly.

[51] In A.A. v. G.G., 2010 ONSC 835, the evidence that the mother had conducted herself to minimize the father’s role in the children’s lives. Conversely, the willingness of the father to accommodate the mother’s access to the children supported the conclusion of the court that there was a greater likelihood that the father would actively support generous and liberal access to the mother. This was a contributing factor for the court to award sole custody of the children to the father.

[52] The Court of Appeal in B.V. v. P.V., 2012 ONCA 1778 also recognized that a custodial parent is acting responsibly and in the best interests of the child by ensuring maximum contact of the child with the noncustodial parent.

[53] Ms. Hill has filed evidence that Paula-Jamieson is “very emotionally attached” to her and that they have a close bond. She concedes that she spends most of her time in a wheelchair; however, she states that she has adapted to her disability and is capable of providing confident care for Paula-Jamieson with the assistance that her mother, Paula Ferraro can provide. This assistance will replace the assistance with caring for Paula-Jamieson that was provided by Brooke Smith, prior to separation.

[54] Paula Ferraro has filed an affidavit in support of Ms. Hill’s motion. She deposes that she assisted the parties with caring for Paula-Jamieson after her birth while Mr. Hill was at work each day. After work and in the evening, Mr. Hill would assist Ms. Hill and with Paula-Jamieson. She deposes that Ms. Hill and Paula-Jamieson have a wonderful relationship, and that Paula-Jamieson is deeply attached to Ms. Hill. She states that “Sara (Ms. Hill) is clearly the most important person in Paula-Jamieson’s life and she is the most important person in Sarah’s (Ms. Hill’s) life.

[55] Ms. Hill also filed the affidavit of Dorothy Camalleri in support of her motion. Ms. Camalleri resides across the street from the matrimonial home at 6 Atto Drive. Ms. Camalleri filed evidence that although Ms. Hill requires assistance, she can, in large part, care for Paula-Jamieson. She states that Ms. Hill can prepare food and prepare the baby, change and bath the baby, and that she is aware that she is in charge of the baby through the night. I do not know how Ms. Camalleri can conclude all this when Ms. Ferraro is clearly residing in the matrimonial home as well.

[56] Brooke Smith also filed an affidavit. Brooke Smith is the mother’s helper hired by Mr. and Ms. Hill to assist with caring for Paula-Jamieson prior to May 2016. Ms. Smith deposes in her affidavit that after Mr. Hill declared that he wished to end the marriage, he became cold and very distant to Ms. Hill. She states that Ms. Hill is very sad and troubled, and seems to be totally terrified that her baby will be taken away from her.

[57] Ms. Smith’s affidavit also provides evidence that he would not pay her for the days when his mother was present, stating his mother could perform the services she would perform. She states that Mr. Hill’s mother spent all of her time in the basement of the home and she had never noticed her assisting Ms. Hill or the baby in any way.

[58] Ms. Smith concludes her affidavit with the observation that Ms. Hill and Paula-Jamieson have an extremely close relationship. They are deeply bonded and that Paula-Jamieson adores her mother.

[59] Mr. Hill filed the affidavit of his mother, Nancy Rosalie Hill, and the affidavit of Christie Wiman, the girlfriend of Mr. Hill’s brother. He has also sworn a supplementary affidavit on November 23, 2016. These affidavits were filed after those affiants had an opportunity to read all of the affidavits filed by Ms. Hill.

[60] The affidavit of Nancy Rosalie Hill provides certain details about assistance she would provide to Ms. Hill with caring for Paula-Jamieson after she came to stay at the home on September 12, 2016. She describes what she observed during the time she was there, and her observation that neither Brooke Smith nor Dorothy Camalleri was present to observe the interaction between Mr. Hill and Paula-Jamieson. She states they are not in a position to give evidence about the allocation of the care given to Paula-Jamieson each weekday afternoon after 3:30 when Mr. Hill would return from work.

[61] Ms. Wiman’s affidavit contains evidence about how uncomfortable Ms. Hill became with Brooke Smith’s employment as a mother’s helper to the family, and her observations when she visited the Hill home. Ms. Wiman provides evidence, however limited, about the diligent care that Ms. Hill could provide to feed and care for Paula-Jamieson. She describes how the child enjoyed playing with her, as well as the activities that Paula-Jamieson enjoyed with her father, like playing “hide and seek” and reading picture books together.

[62] To determine the motion of Ms. Hill for temporary relief for custody of and access to Paula-Jamieson, I have considered all affidavits filed in respect of that motion, and those affidavits filed in connection with Mr. Hill’s own motion. Having regard to all of the evidence, it is clear to me that Paula-Jamieson should reside primarily with Ms. Hill for now, with generous access to Paula-Jamieson awarded to Mr. Hill. In my view, the more generous access Mr. Hill exercises, the better it will be; it is important to Paula-Jamieson as well as both parents to give Mr. Hill ample opportunity to demonstrate his ability to care for Paula-Jamieson in a post-separation environment. This will allow him a fair opportunity to show he is capable of co-parenting in order to present his case at trial for joint or shared custody. Generous access will also provide Ms. Hill with an opportunity to rest and re-energize herself when Paula-Jamieson is with her father.

[63] I therefore order that Paula-Jamieson shall reside primarily with Ms. Hill, but that Mr. Hill shall have generous access to Paula-Jamieson on the following terms:

Regular Access

a) The child, Paula-Jamieson Rose Hill (“Paula-Jamieson”) born August 8, 2014, shall reside with and be in the date to day care and control of the respondent, Sarah Glennie Hill. b) The applicant, Robert Bradley Hill, shall have access to Paula-Jamieson as follows: i) Each Tuesday from 3:30 p.m. to 7:30 p.m.; ii) Alternate weekends from 3:30 p.m. on Friday to 7:30 p.m. on Sunday, commencing April 14, 2017; iii) Such further and other times as the parties may mutually agree in writing c) The applicant, Robert Bradley Hill, shall be responsible for picking up and dropping off Paula-Jamieson for access purposes at 6 Atto Drive, Guelph, Ontario

Special Access

d) Halloween – commencing 2017 and each odd-numbered year from 4:30 p.m. to 7:30 p.m. d) Christmas (i) In odd numbered years commencing 2017, from 3:30 p.m. on December 24th to 1:00 p.m. on December 25th, from 3:30 p.m. on December 27th to 3:30 p.m. on December 31st and from 3:30 p.m. on January 1st to 7:30 p.m. (ii) In even numbered years commencing 2018, from 1:00 p.m. on December 25th to 3:30 p.m. on December 27th, from 3:30 p.m. on December 31st to 3:30 p.m. to January 1st. e) Spring Break (when the child is attending school) (iii) Every even numbered years, from Monday to Friday of the week the child is off from school. The mother will have the child in odd numbered years from Monday to Friday of the week the child is off from school. f) Summer months (July and August – when the child is attending school) (iv) Each parent shall have two non-consecutive weeks (7 days = one week) to spend with the child. The father shall notify the mother in writing by no later than May 31 of each year as to which weeks he is seeking. The father will have priority in choosing his weeks each year as the mother is not employed. g) Thanksgiving – in odd numbered years, the child will be with the father on Thanksgiving Day from 9:00 a.m. to 7:30 p.m. h) Father’s Day – every Father’s Day from 7:00 a.m. to 7:30 p.m. regardless of the regular schedule. i) Mother’s Day – Every mother’s day from 7:00 a.m. to 7:30 p.m. regardless of the regular schedule j) Any other access the parties may agree to.

Temporary Support

[64] Mr. Hill was ordered to make all mortgage payments, and to pay all carrying costs for the matrimonial home in lieu of paying interim support under Justice LeMay’s order of November 29, 2016. That order was made on consent and met certain shelter needs for Ms. Hill and the child at the time. That order was made on a without prejudice basis.

[65] Mr. Hill now seeks an order to pay support that will provide Ms. Hill with cash flow to provide her with flexibility on how she may spend that money. The cash flow provided by a support order will also provide Ms. Hill with evidence of an income she will require to qualify for financing if she is genuine about refinancing the house to purchase Mr. Hill’s interest.

[66] For the purpose of the motion before me, Ms. Hill is prepared to accept Mr. Hill’s line 150 income of $77,916.26 shown in box 14 of his T4 slip for tax year 2016. According to the DivorceMate calculations based on that income for a spouse with one child, Mr. Hill should pay table support for Paula-Jamieson in the amount of $708. Spousal support to Ms. Hill based on Mr. Hill’s annual income in the same amount ranges from $1,356 at the low end, $1,591 for mid-range and $1,828 at the high end under the Federal Spousal Support Advisory Guidelines.

[67] Ms. Hill has made the submission that she would accept a support payment of $2,500 a month for a combined total of temporary child and spousal support. This amount would be justified if Mr. Hill was ordered to pay $708 for child support, and spousal support at the higher end in the amount of $1,792 each month.

[68] I have no hesitation in ordering Mr. Hill to pay table support for Paula-Jamieson in the amount of $708 a month for child support.

[69] I consider $1,792 an appropriate amount to order Mr. Hill to pay in spousal support to Ms. Hill each month. I find this order for spousal support in keeping with the facts.

[70] This support order replaces paragraph 4 of Justice LeMay’s order requiring Mr. Hill to pay the monthly mortgage payment and other carrying costs for the matrimonial home.

Exclusive Possession, or Sale of the Matrimonial Home

[71] An order for sale under the Partition Act is by its nature a final order. The general relief if an order is granted requires the property be listed for sale and sold subject to the directions or further orders of the court. However, I must first decide whether Ms. Hill’s motion for a temporary order granting her exclusive possession under the Family Law Act should hold up Mr. Hill’s motion based on a right of ownership under the Partition Act.

[72] The title to the matrimonial home at 6 Atto Drive in Guelph is registered in the names of both Robert Bradley Hill and Sarah Glennie Hill as joint tenants.

[73] Ms. Hill has exercised exclusive possession of the home since Justice LeMay made his order on November 29, 2016.

[74] Mr. Hill seeks an order for the immediate sale of the matrimonial home. Although Ms. Hill at one time relied upon a technical ground that Mr. Hill had not pleaded this relief, I note that the claims made by Mr. Hill in his application seek an order for exclusive possession of the matrimonial home in paragraph 11, and in paragraph 12 an order in the alternative for partition and sale.

[75] I also note that Mr. Hill has amended his notice of motion to request that the house shall be listed for sale pursuant to the Partition Act by way of summary judgment. This is the order Mr. Hill is seeking if Ms. Hill is unable to secure the financing necessary to purchase his interest in the property.

[76] Mr. Hill seeks a final order for the sale of the matrimonial home on the basis that Ms. Hill was given until March 3, 2017 to make him a proposal to purchase his interest in the matrimonial home. To date, she has not done so.

[77] Mr. Hill attaches an Opinion of Value from a real estate agent that the home at 6 Atto Drive had a value as of October 2016 of $575,000. Although the parties made submissions at the hearing of the motion that the fair market value of the home has increased to $630,000 or more, there is no evidence of that increase before the court.

[78] In addition to purchasing Mr. Hill’s interest in the matrimonial home in the form of his share of equity, there is also a mortgage and a secured line of credit registered against title to the house with a balance owing of approximately $344,400 that Ms. Hill must consider. When that indebtedness is subtracted from the fair market value of at least $575,000, there would appear to be at net equity in the home of at least $230,600. That equals $115,300 in equity for each party, before adjustment for equalization or for any other purpose permitted by law.

[79] Mr. Hill concedes that he would owe Ms. Hill an equalization payment he calculates to be $6,662.74 over and above her share of the equity in the matrimonial home. When that equalization payment is deducted from any buy out amount, Ms. Hill would then have to pay him a net sum of $108,650 to purchase his interest in the house. This does not include any analysis to the true equalization payment Mr. Hill may owe to Ms. Hill, nor does it take into consideration any notional disposition expense.

[80] Mr. Hill has filed evidence that Ms. Hill could not afford to arrange financing to pay out the existing encumbrances against the home, to say nothing of raising the funds necessary to pay him out for his one half interest in the matrimonial home. Mr. Hill has filed a supplementary affidavit stating that even if he were to pay Ms. Hill’s spousal support at the highest end of the range, as well as child support for Paula-Jamieson under the Federal Child Support Guidelines, Ms. Hill will not be able to secure a mortgage on her own to finance a buyout.

[81] Ms. Hill presents a somewhat different picture. She has filed an affidavit sworn on November 25, 2016 in which she determines that the carrying costs for the matrimonial home are approximately $2,236.36 each month, or $26,836 a year. She states that if she receives spousal support from Mr. Hill at the high end of the range, child support for Paula-Jamieson, then with $500 she receives from her father and between $721 and $740 of benefits she otherwise receives, she will have $3,430 of net disposable income each month. Ms. Hill deposes in her affidavit that this amount is more than sufficient to service a mortgage debt and to carry the matrimonial home after purchasing Mr. Hill’s interest in it.

[82] Ms. Hill seeks an order for exclusive possession of the matrimonial home so that she does not have to take the necessary steps to purchase Mr. Hill’s interest at this time. She states that Mr. Hill has waged a cruel and bitter campaign to impose his will upon her to sell the matrimonial home. Particulars of this campaign are summarized in paragraph 15 of her factum in which it is alleged that Mr. Hill has:

a. Refused to physically assist Sarah; b. Engaged in petty and annoying behaviours; c. Threatened to stop payment of Sarah’s health claims; d. Would not prepare meals for Sarah or buy or stock any groceries for her use; e. Removed Sarah’s laptop computer; f. Locked out Sarah from internet access to their joint bank account and line of credit; g. Maxed out the overdraft on their joint account; h. Hacked into Sarah’s text, emails and pictures from her smart phone; i. Blocked access by Sarah’s mother to Sarah’s cellphone; j. Threatened to not pay Brooke Smith, the mother’s helper; k. Belittled Sarah and continuously hurt her feelings; l. Moved his mother into the matrimonial home for several days a week knowing this would increase stress on Sarah.

[83] Ms. Hill also relies upon letters she obtained from her doctor, Dr. Ellen Lee dated October 3, 2016 and October 17, 2016. In the letter dated October 3, 2016, Dr. Lee states that Ms. Hill has a diagnosis of Multiple Sclerosis. She states that despite the significant difficulties that accompany her disease, she has always noted her to be a reasonable person who has coped relatively well with that illness. However, in the past several months Ms. Hill’s emotional health has deteriorated significantly. She then states as follows:

“She currently fulfills diagnostic criteria for a major depressive episode. I am convinced that this depressive episode is a result of the stressors surrounding the outstanding family law proceeding involving her husband Robert Bradley Hill. This includes the emotionally abusive, financially abusive and physically abusive environment at home that she has reported to me.”

[84] Dr. Lee concludes her letter by stating that she feared Ms. Hill’s depression would worsen and that she would suffer additional relapses in her Multiple Sclerosis symptoms if the current living situation continues.

[85] In the letter dated October 17, 2016, Dr. Lee states her strong conviction that it is medically necessary for Ms. Hill and the child Paula-Jamieson to leave the family home due to the ongoing emotional, psychological and financial abuse Ms. Hill reports she is suffering.

[86] The question I must answer is whether an order should be made for the sale of the matrimonial home or whether Ms. Hill should be granted exclusive possession of the home at this time. In order to determine this question, a brief review of the law relating to partition and sale and the law relating to exclusive possession should be helpful.

Exclusive Possession

[87] Under the Family Law Act, the right of each spouse to occupy the matrimonial home is sacrosanct. In section 19, the legislature has provided that both spouses have an equal right to possession of a matrimonial home. Section 24 of the Family Law Act provides that, despite section 19, the court may give exclusive possession of the matrimonial home as the court may direct, among other things.

[88] It is important for the purpose of this motion to set out s. 24(3) of the Family Law Act. Section 24(3) establishes the factors a court must consider on a motion for exclusive possession. Section 24(3) reads as follows:

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; (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. R.S.O. 1990, c. F.3, s. 24 (3).

[89] Ms. Hill seeks exclusive possession of the matrimonial home for herself and Paula-Jamieson. Her mother, Paula Ferraro resides in a basement apartment in the matrimonial home. Ms. Hill has deposed that Ms. Ferraro assists her with the care of Paula-Jamieson. Realistically, she also seeks exclusive possession of the matrimonial home not only so that she and Paula-Jamieson have a place to live that is suitable to their needs and circumstances, but also so provide Ms. Ferraro with a place to live.

[90] Ms. Hill seeks an order from this court for exclusive possession of the matrimonial home because of the alleged effect of Mr. Hill’s behavior on her fragile health. She concedes that there has been no physical violence between Mr. Hill and herself. Ms. Hill relies upon Hill v. Hill 1987 CarswellOnt 238 and the more recent decision of Justice Pazaratz in Kutlesa v. Kutlesa 2008 CarswellOnt 1657 to support her position that callous conduct against a vulnerable spouse can, in certain circumstances, qualify as “violence” within the meaning of section 24 (3) (f) of the Family Law Act.

[91] I have also considered the approach the court is to take under Moulin v. Moulin, 1989 CarswellOnt 1368, Gainer v. Gainer 2006 CarswellOnt 2443 and Brew v. Brew, 1997 CarswellOnt 5822. The court in each Moulin and Brew relied upon the decision of Justice McMahon in Rosenthal v. Rosenthal (1986), 3 R.F.L.(3d)126 (Ont. H.C.), where the court had determined that the moving party seeking exclusive possession of a matrimonial home must establish on the balance of probabilities that the evidence relied upon falls within the provisions of section 24 (3).

[92] On the totality of the evidence given in Rosenthal, the court found that the moving party had failed to satisfy the requirements of section 24(3). Accordingly, the court dismissed the motion for exclusive possession and ordered that the matrimonial home be sold.

[93] The court in Moulin, after discussing Rosenthal, reaffirmed that the onus is on the moving party to establish that one or more of the six factors listed in section 24 (3) have been met before the court grants an order of temporary or interim exclusive possession of a matrimonial home to one spouse.

[94] Mr. Gray argues that Ms. Hill’s evidence meets the standard in Hill v Hill to constitute violence within the meaning of section 24(3)(f). Justice Fitzgerald in Hill gave an eloquent definition of non-physical “violence” within the meaning of subparagraph (f) by stating that:

[25] Paragraph (f) refers to “violence”. In my view the violence in this context must be such that it makes continuation of joint cohabitation in the matrimonial dwelling impractical. Violence in my view includes psychological assault upon the sensibilities of the other spouse to a degree which renders continued sharing of the matrimonial dwelling impractical. Where, as here, the conduct of the husband in written and spoken communication to the wife is calculated to produce and does in fact produce an anxiety state which puts the wife in fear of her husband’s behaviour and impinges on her mental and physical health, violence has been done to her emotional equilibrium as surely as if she had been struck by a physical blow.

[95] And at Paragraph 28:

[28] In my view the sense and purpose of the Family Law Act, which is a remedial statute and hence to be liberally construed, must surely include in the meaning of violence that violence causing injury to a spouse which can be achieved by words and deeds and is not restricted to the violence which can be achieved solely by physical abuse.

[96] Justice Pazaratz in Kutlesa v. Kutlesa, relied upon the analysis of Fitzgerald J. in Hill v. Hill to award exclusive possession of the matrimonial home to the wife on the facts of that case. However, Justice Pazaratz connected the essential elements required to meet the factor in section 24(3)(f) to constitute violence with a need of the vulnerable spouse for protection in the following way:

[31] The “violence” referred to in section 24(3)(f) must, of necessity, contemplate that spouses may need to be protected from serious injury or harm which can arise even without physical hitting. Intimidation and emotional abuse can take many forms. The court has a responsibility to address the real dynamics between the parties, including any effort by a strong or dominant partner to engage in psychological warfare, or coerce settlement without making disclosure.

[97] I consider the facts in Hill v. Hill to be different than the facts before me. In Hill, Justice Fitzgerald made findings of fact amounting to a psychological assault upon the moving party. This psychological campaign made the continued sharing of the matrimonial home impractical. The therapist of the moving party wife also gave evidence as to the effect of the psychological violence and intimidation on her.

[98] The court in Gainer v. Gainer held that the emotional condition of a spouse is not a factor enumerated under section 24(3) which the court is permitted to take into account. Therefore, the evidence given by Ms. Hill that the divorce is causing her stress, or that Mr. Hill’s conduct working upon her fragile health has created stress and anxiety amounting to an emotional condition, is not enough to be considered violence under section 24(3).

[99] The notes written by Dr. Lee must be considered in this light. There must be clear and unequivocal evidence that, on the balance of probabilities, there has been a psychological assault upon the sensibilities of the embattled spouse to a degree that renders continued sharing of the matrimonial dwelling impractical. As unfortunate as it may be, the stress Ms. Hill reports to Dr. Lee as a result of the separation does not meet that standard.

[100] Mr. Hill denies the allegations made against him in Ms. Hill’s affidavit and summarized in her Factum. Mr. Hill sets out the following position in paragraph 34 of his Factum, which is a condensation of evidence given in his affidavits:

Contrary to the Mother’s materials, it is absolutely untrue that the environment within the matrimonial home is emotionally and psychologically violent and abusive. The Father has never been physically aggressive towards the Mother or their child. Rather, the Father comes home from work, prepares the meals for the family, assists in feeding Paula-Jamieson, cleans up and then plays with Paula-Jamieson for 3 to 4 hours or so before getting her ready for bed. The Father has little to no interaction with the Mother as once Paula-Jamieson is asleep, the Father goes downstairs to the basement. There is no reasons whatsoever for the mother to stay at her mother’s house once the litigation was commenced other than to seek the sympathy of the court and to try to give the impression that she is the “victim” in this separation.

[101] I am unable to determine if the allegations made by Ms. Hill in her affidavit and summarized in section 15 of her Factum have the ring of truth or have likely occurred. The affidavit evidence of the parties is contradictory, and an assessment of credibility would be difficult, if not impossible to make. There have been no cross-examinations on these motions, and the evidence of each party remains untested.

[102] Ms. Hill seeks exclusive possession of the matrimonial home on the basis that Mr. Hill has now found alternate accommodation and no longer requires possession of the matrimonial home. She argues that it would be in Paula-Jamieson’s best interests in any event to remain at the matrimonial home.

[103] In response, Mr. Hill states that he has relocated his residence to a basement apartment on a temporary basis, and intends to purchase a new home that would be more appropriate for the time he will be spend with Paula-Jamieson in a shared custody arrangement, or as an access parent. To purchase this new property, he requires Ms. Hill or a third party to purchase his interest in the matrimonial home at 6 Atto Drive, or to receive his share of the sale proceeds when the matrimonial home is sold to a third party.

[104] Mr. Hill states that Paula-Jamieson is currently 2 ½ years old, and at that age would have no attachment to her room or her surroundings. He also makes reference to the fact that Paula-Jamieson has been removed from the matrimonial home by Ms. Hill to her grandmother’s house, and lived there until December 15, 2016 when she was moved back to the matrimonial home under Justice LeMay’s order.

[105] I would require expert evidence to be in a position to understand whether or not a 2 ½ year old child can form an attachment to her room or to a particular home of the sort described by Ms. Hill in her affidavit. There is insufficient evidence to indicate whether Paula-Jamieson has a circle of friends or acquaintances she plays with that would be disrupted if she were to move. I therefore find that I am unable to make a decision either way on a temporary basis about whether a change of residence for Paula-Jamieson with her mother would not be in her best interests.

[106] The evidence filed on Ms. Hill’s motion for exclusive possession does not satisfy the requirements of section 24(3) for an order for exclusive possession. The motion for that relief is therefore dismissed.

Sale of the Matrimonial Home

[107] The power of the court to order the sale of a matrimonial home where title is held jointly by both parties is thoroughly canvassed in the cases Latchum v. Latchum, 2002 CarswellOnt. 1757, [2002] O.J. No. 2126 (Ont. C.A.), Silva v. Silva, 1990 CarswellOnt 319 and my decision in Afolabi v. Fala, 2014 ONSC 1713.

[108] The right of a joint owner to the sale of a jointly held property flows directly from the ownership of that property. The only defence of the responding party to a motion for the sale of the property would be if the motive for selling the property was malicious, vexatious or oppressive: Latchum v. Latchum. There is also authority for the proposition that if the sale would cause the resisting party economic hardship, that economic hardship could amount to oppression: Bailey v. Rhoden, [2008] CarswellOnt. 4988 (SCJ).

[109] The motion of Mr. Hill may have requested orders of a final nature by way of summary judgment on several issues, but it did not seek a final order or a determination of what equalization payment was owing to Ms. Hill. I only have his evidence on the motion that because of a property on Goodwin Drive he owns, he may owe Ms. Hill an additional $6,662.74 as an equalization payment. If this is the only equalization payment he is to make, it is not sufficient to hold up the sale of the matrimonial home under the Family Law Act.

[110] I have weighed the evidence given by Ms. Hill against the evidence given by Mr. Hill and I have determined that I can make no conclusive findings that would support making an order for exclusive possession or against making an order for sale based on that evidence. However, using the evidence as a backdrop, I am left to make an order using the common sense of a dispassionate observer.

[111] The matrimonial home was valued at $575,000 in August 2016. There is no evidence to support a finding that the market value of the home is decreasing nor increasing in value. Mr. Hill’s counsel has made submissions that the fair market value of the home is now $630,000, but there is no evidence of that increase. While any delay in the listing and sale of the matrimonial home will be a temporary measure of relief for Ms. Hill, it will only defer the inevitable that the matrimonial home will be sold and the proceeds divided.

[112] It is an unfortunate but realistic fact that whatever real estate market exists when the matrimonial home is sold, each of the parties must buy or rent into the same real estate market unless that party rents until she or he makes a strategic purchase if and when the market recedes. This also applies if and when either party should move to another city or town with a less expensive housing market that meets her or his needs or circumstances.

[113] Reducing these observations to meet Ms. Hill’s circumstances, if she were granted an order for exclusive possession, or the sale was otherwise delayed to allow her one year to live in the matrimonial home, she will have to rent or purchase further accommodation in a more expensive housing market if the real estate prices increase in Guelph. If the market declines, Ms. Hill will see her share of the equity in 6 Atto Drive decrease over the same period. If house prices fall, she will then have less purchasing power or resources to rent or purchase alternate accommodation. Either way, time is not on her side.

[114] Ms. Hill has not provided any evidence of a persuasive nature that Mr. Hill is acting in a malicious or vexatious manner when he seeks the order for sale, nor would the sale of the matrimonial home be oppressive or cause undue hardship for her. She will receive her one half of the equity in the matrimonial home. This money will enable her to rent or purchase alternative accommodation according to her needs and circumstances. As a result of obtaining the temporary order I have now made for child support and spousal support, Ms. Hill has an income to rely upon in any financing application she makes for a new home. The sale of the matrimonial home and the receipt of her share of equity, together with temporary support I have ordered will provide her with an opportunity to make new beginnings.

[115] I am also concerned that the carrying costs of the matrimonial home are greater than Ms. Hill has projected in her materials. Mr. Hill has given evidence that the mortgage payments and carrying costs of the matrimonial home are approximately $31,056 a year. This total is slightly more than the monthly payments and expenses estimated by Ms. Hill in her affidavit material.

[116] Even if the mortgage payments and carrying costs were those estimated by Ms. Hill, the support payments she will receive if she was to remain in the matrimonial home would only be sufficient to cover those costs without providing further income that would enable her to sufficiently qualify for financing to purchase Mr. Hill’s interest. If Ms. Hill intends to purchase alternate accommodation, she will require a down payment. She will require her equity in the matrimonial home for that down payment, on a home that is less expensive, and perhaps located in a more affordable municipality.

[117] The fact of the matter is that Ms. Hill now lives in too much house for what she can afford to meet the two objectives: to meet the carrying costs of the property, and to refinance at the same time to purchase Mr. Hill’s interest.

[118] Therefore, an order shall go that the matrimonial home at 6 Atto Drive in Guelph be listed for sale at a price to be agreed upon, or that represents the median of the listing price recommended by two well-regarded realtors in the Guelph area. The parties shall list the home by June 1, 2017. The listing agreement shall provide that the sale will not complete until October 31, 2017. This closing date will give each of the parties’ ample time to make arrangements for alternate living accommodations suitable to their needs and circumstances.

[119] The parties may seek further directions from me from time to time with respect to listing 6 Atto Drive for sale, the acceptance of any offer, and closing arrangements, if necessary. I may also be approached for directions with respect to the interim disbursement of funds from the net proceeds of sale if the parties cannot agree on any such arrangement. Counsel may obtain an appointment through the trial coordinator in Guelph, and any attendance may take place by telephone if on consent, or otherwise before the court in person.

Costs

[120] If either party seeks costs for these motions, they may make written submissions by April 21, 2017. Any written submissions in response may be filed by May 5, 2017. All written submissions shall consist of no more than two typed-written pages, not including any Bill of Costs or offer to settle. There shall be no reply materials filed, without leave. All written submissions may be filed by fax to my judicial assistant, Priscilla Gutierrez at 905-456-4834 in Brampton.

Released: April 7, 2017 Emery J.