Court File and Parties
Court File No.: FS-16-88121 Date: 2017-04-18 Superior Court of Justice – Ontario
Re: Tamara Brown and Bonwynne Ramage
Before: Ricchetti, J.
Counsel: Jennifer Klotz, for the Applicant Tamara Brown Glen A. Cook, for the Respondent Bonwynne Ramage
Endorsement
The Motions and Issues
[1] There is a motion and cross-motion for interim relief to be dealt with.
[2] The issues to be decided are:
(a) Whether Tamara Brown (the “Mother”) is to have sole interim custody of Amara Ramage-Brown (DOB May 28, 2008) (“Child”)? (b) What access, if any, should Bonwynne Ramage (the “Father”) have? (c) Should 6774 Darcel Avenue, Mississauga (“the matrimonial home”) be sold (as the Father wants) or should the Mother have exclusive possession (as the Mother wants)?
[3] The Child was born on May 28, 2008.
[4] The parties married on June 6, 2009.
[5] The parties commenced cohabitation in 2012.
[6] Their cohabitation ended for approximately one year commencing in 2014 until 2015, when cohabitation resumed.
[7] The parties separated in October or November 2016.
Interim Custody
[8] While the Father did not consent to an order granting the Mother interim sole custody of the Child, his position for joint custody was not really pursued in argument or in writing; and for good reason.
[9] In response to this court’s question as to the Father’s position on custody, in oral submission, the Father’s counsel submitted that interim joint custody would be the appropriate order. However, no such relief was claimed in his motion or any written submissions made in his factum regarding custody.
[10] Regardless of the Father’s position, this court is satisfied that sole interim custody should be awarded to the Mother.
[11] The Child was born in 2008. The Child remained in the Mother’s sole care until 2012. The Father, upon his arrival to Canada, started to cohabitate with the Mother and Child in 2012.
[12] Contrary to the Mother’s wishes, the Father left the Mother and Child to go to Western Canada in 2014. The Mother says he abandoned the family. The Father says he went out west for employment. Nevertheless, he remained there for approximately 13 months. He had no child care responsibilities for the Child during that time.
[13] The Father returned in 2015 and resumed cohabitation with the Mother until separation.
[14] On either October 1, 2016 or November 19, 2016, the parties separated. Since November 19, 2016, the Child has been with the Mother and her grandmother living in a shelter. The Father has not seen the Child since that time. The Child has been solely in the Mother’s care during the past six months.
[15] In his Answer, the Father sought joint custody. However, it is significant that from the time of separation until March 23, 2017 (when the Father brought the motion seeking access), the Father took no legal steps to see his Child. This motion by the Father was in response to the Mother’s motion to obtain exclusive possession of the matrimonial home.
[16] I am not persuaded the Father has had significant involvement in raising the Child to date. On the other hand, the Mother has clearly been the sole, if not dominant, care-giver throughout the majority of the Child’s life.
[17] In addition, the Child has had the benefit of the care-giving by her grandmother, the Mother’s mother. This will continue if the Mother has sole custody of the Child. This will maintain stability for the Child.
[18] In these circumstances, it is clear to me that the Mother should have sole interim custody of the Child.
[19] Order to go as follows until further order of this court:
(a) The Mother shall have sole interim custody of the Child; and (b) The Child’s residence shall be with the Mother.
Access
[20] The Father seeks access every Sunday from 10 am to 5 pm.
[21] The Mother seeks that this court order no access by the Father.
[22] The Ontario Children’s Lawyer (“OCL”) has recently agreed to accept this family for investigation and report. The Mother submits that the Father should have no access until the OCL completes its report. In the alternative, the Mother seeks an order that the Father have supervised access only pending the OCL report.
[23] I find the Mother’s position to be unreasonable. The Father should have interim access with the Child on the terms set out below for the following reasons.
[24] The Mother alleges physical and emotional abuse by the Father. The Mother alleges that some of the domestic abuse occurred in the Child’s presence. The police attended at their home four times for domestic issues while the parties resided together. The police reports are unclear as to what, if anything, took place. The Father denies any abuse.
[25] Essentially, the Mother says that she is in fear for herself and the Child and, for that reason, left the matrimonial home. I make no finding regarding the alleged abuse alleged by the Mother or the Mother’s reasons for leaving the matrimonial home. There is conflicting evidence.
[26] As a result of the domestic abuse allegations and the involvement of the police, the Children’s Aid Society (“CAS”) has investigated the family and found no child protection issues. The CAS has not requested the parties to take any counselling.
[27] The OCL report will not be ready for a number of months.
[28] The Mother’s position at its highest is that the Child is affected by the alleged abuse because the Child was present during such abuse.
[29] Having reviewed the many, many affidavits of the Mother, even if the Mother’s allegations are true, I find no evidence or suggestion of a threat or danger towards the Child. The alleged abuse was always directed at the Mother.
[30] There is no suggestion by the Mother that such abuse was directed at or against the Child. I fail to see how the alleged abuse against the Mother will become an issue for the Child during any access by the Father when the Father and Mother are not together during such access.
[31] I find the Mother’s position to be unreasonable and an attempt to effectively delay or deprive, for no cogent reasons, the relationship between the Father and the Child continuing or developing.
[32] The Mother’s alternative submission for supervised access adds to this court’s concern regarding the Mother’s motivation. There is no evidence to support a supervised access order. Such orders are reserved for exceptional cases where no safe alternatives available for access to promote the parent/child relationship.
[33] I find no reason, in this record, to deny the Father access or to order that access be supervised.
[34] Given the above, I am persuaded that the access as requested by the Father is reasonable in the circumstances.
[35] Order to go as follows until further order of this court:
(a) The Father shall have access time with the Child each Sunday at 10 am to 5 pm. Pick up and drop off shall be at a third party location agreed upon by the parties; (b) The Mother may seek to vary the Father’s access if the Father regularly fails to exercise access as permitted; and (c) Either party may seek to vary the access after the OCL renders its report.
The Matrimonial Home
[36] The Mother works at Canada Post. In 2016 her income was approximately $45,000. The Mother has not worked since January 26, 2017. She alleges that she has been unable to work because of medical conditions. She receives disability pay.
[37] The Father is a painter. The Father’s 2016 income was approximately $26,000 and has an expected income of $36,000 in 2017. The Mother alleges the Father also earns cash payments for painting jobs. She found a large amount of cash belonging to the Father in the matrimonial home which, she says, confirms his cash income.
[38] The Father has another child from a previous relationship. That child is 15 years old. That child does not live with the Father.
[39] In 2012, the matrimonial home was purchased, allegedly, solely by the Mother with a very small loan from the Father. The matrimonial home is registered solely in the Mother’s name. There is a separate unit in the basement of the matrimonial home, tenanted to a third party that pays either $500 or $1,000 per month to reside there.
[40] The Father alleges he loaned $10,000 to the Mother to the purchase of the matrimonial home. The Father may have made a significant number of monthly payments to the Mother of approximately $1,000 into their joint bank account – whether to contribute to the mortgage, living expenses or for some other reason is not clear. The Father also alleges he made improvements to the matrimonial home.
[41] The Mother disputes the Father’s claim to an interest in the matrimonial home.
[42] Until November 19, 2016 the Mother, the Child and the maternal grandmother lived in the matrimonial home along with the Father.
[43] On November 19, 2016, the Mother left the matrimonial home with the Child and her mother. Since then, except for a very brief period over one weekend, the three of them have been living in a shelter. The shelter, being a temporary shelter, wants the Mother, Child and grandmother to move out as soon as possible.
[44] The matrimonial home is close to the Child’s school (a 5 minute drive). The Child’s friends also live close to the matrimonial home.
[45] As stated above, the Child’s maternal grandmother lived in the matrimonial home with the Mother and Child. The maternal grandmother assisted in caring for the Child. When the Mother moved out of the matrimonial home, the maternal grandmother also moved out. She too lives in the shelter with the Mother and Child pending this court’s decision.
[46] The Father claims a constructive interest in the matrimonial home. He seeks an equalization of the equity in the matrimonial home. He seeks the sale of the matrimonial home pursuant to s. 10 of the Family Law Act (“FLA”) and the Partition Act.
[47] The Mother seeks exclusive possession of the matrimonial home. The Mother alleges that she continues to pay the mortgage and other expenses associated with the matrimonial home, even though she is living in the shelter and the Father lives in the matrimonial home.
[48] The Mother states in her pleading that she wants to pay out any equalization owed to the Father and to keep the matrimonial home. She has qualified for financing but it is unclear whether it will be sufficient to pay any equalization payable to the Father. It all depends on the results at trial.
Father’s Claim for a Sale of the Matrimonial Home
[49] The Father is not the registered owner of the matrimonial home. The Father is not a joint registered owner of the matrimonial home. The Father has a claim to an interest in the matrimonial home. However, whether the Father’s claim will or will not succeed is unknown at this time. The Father may be entitled to a portion of the equity in the matrimonial home during the marriage and prior to separation. These issues will be decided at trial.
[50] The Father’s claim to a beneficial interest in the matrimonial home cannot be determined on an interim motion because of the highly conflicting evidence of the parties. An order cannot be made under s. 10(1) of the FLA as requested by the Father.
[51] It is also noteworthy that the cohabitation of the parties was short-lived. They lived together from 2012 until 2014 and from 2015 until 2016. The Mother claims an unequal division of the family property. This adds further uncertainty to what, if any and to whom, an equalization payment will have to be made.
[52] Section 23 of the FLA does not assist the Father since he has not yet established that he has an interest in the matrimonial.
[53] Section 24(2) of the FLA makes it clear that this court, on an interim motion, does not have the jurisdiction to dispose of a registered owner’s interest in the matrimonial home contrary to her wishes. Given that this is an interim motion, the Father’s reliance on s. 24(1) (f) of the FLA is misplaced.
[54] The Father’s reliance on the Partition Act is also misplaced. Until there is a finding the Father has an interest in the matrimonial home, he cannot seek an order for its sale under that Act.
[55] The Father cannot rely on s. 9(1)(d) of the FLA since there is no current equalization payment due since any equalization payment has not yet been determined by the court.
Father’s Alternate Solutions
[56] It is clear that there is considerable conflict between the parties – the regular involvement of the police, the CAS and now the OCL. I am satisfied that the continued cohabitation of the parties in the same home is not a viable option regardless of the alternate solutions proposed by the Father.
[57] The Father submits that, If the court decides not to order the sale of the matrimonial home, the Father seeks to be permitted to reside in the basement unit in the matrimonial home pending trial. In the further alternative, the Father suggested a “scheduled living” arrangement whereby each would take turns living in the matrimonial home.
[58] Let me deal with the Father’s suggestions of a “scheduling” alternating possession by the parties. This makes little sense given the income of the parties. The parties need to have the financial ability or resources for other living arrangements. This may well work for the Father who is not paying the expenses on the matrimonial home and may have another residence as an option (where his eldest daughter lives). It certainly doesn’t work for the Mother who is living in the shelter and must move out of the shelter. I am satisfied the Mother doesn’t have the financial resources to find other accommodations and maintain the matrimonial home. The Mother would need larger premises for herself, the Child and her grandmother who assists in caring for the Child. I reject this as a possible solution.
[59] As for the Father’s other suggestion that he live in the basement unit, this too has problems. What is the ability to terminate the tenancy in the basement? What happens and who is responsible for the loss of rental income of about $1,000 (or $500) per month? Will living in the same home continue the conflict between the parties? This submission has too many uncertainties.
[60] Clearly, the Father must have other possible accommodation available to him since he seeks the sale of the matrimonial home without any guarantee he will receive any of the equity in the matrimonial home until a trial decides his claim for a constructive interest in the matrimonial home. That may take years. I reject this as a possible solution.
Mother’s Claim for Exclusive Possession
[61] The Mother moved expeditiously after she left the matrimonial home for exclusive possession by way of an ex-parte motion. This motion was dismissed without prejudice. The parties were direct to attend a case conference.
[62] Regrettably, given the delay in scheduling a case conference, this has caused the Child to live in a shelter for a long period of time.
Analysis
[63] Section 24 of the FLA provides:
- (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, (a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents; (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; (c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse; (d) direct that the contents of the matrimonial home, or any part of them, (i) remain in the home for the use of the spouse given possession, or (ii) be removed from the home for the use of a spouse or child; (e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes; (f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered; and (g) where a false statement is made under subsection 21 (3), direct, (i) the person who made the false statement, or (ii) a person who knew at the time he or she acquired an interest in the property that the statement was false and afterwards conveyed the interest, to substitute other real property for the matrimonial home, or direct the person to set aside money or security to stand in place of it, subject to any conditions that the court considers appropriate. (2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e). (3) In determining whether to make an order for exclusive possession, the court shall consider, (a) the best interests of the children affected; (b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations; (c) the financial position of both spouses; (d) any written agreement between the parties; (e) the availability of other suitable and affordable accommodation; and (f) any violence committed by a spouse against the other spouse or the children. (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.
[64] I am satisfied that there is conflict between the parties which prohibits them residing in the same home and that the continued joint residency would not be in the Child’s best interests.
[65] There is no question that it is in the best interests of the Child to move back into the matrimonial home. This would be vastly superior for the Child rather than continued living in a shelter. The Child will return to a more normal life in a home – her old home. She will return to what she knew and was used to prior to November 2016. Her comfort, safety and familiarity are all strong factors favouring a return to the matrimonial home. Further, the Child would be closer to school and her friends.
[66] From a financial perspective, granting the Mother exclusive possession is equitable. She pays the mortgage. She pays the expenses of the matrimonial home. She has little or no other options for alternative accommodations given her income and expenses. This is evident from her lack of options for the past six months to continue to live in the shelter with her Child and mother.
[67] Allowing the Mother to return to the home she pays for also assists in the preservation of the equity in the matrimonial home to the benefit of both parties and their respective claims.
[68] The Father does not need to live in the matrimonial home since he is anxious for its sale. He would have to move out of the matrimonial home if he was successful on his motion. The Father must have considered alternate accommodations if the court ordered the sale of the matrimonial home. He has a reasonable income and, if necessary, can afford to obtain other accommodations.
[69] I am not prepared to make any finding of violence one way or another. This is not a factor in deciding whether to grant the Mother exclusive possession of the matrimonial home.
[70] While an order requiring one of the parties to leave and remain away from the matrimonial home is not lightly made, considering all the factors in this case, I am satisfied that the Mother has established that the best interests favour granting the Mother exclusive possession of the matrimonial home.
[71] Order to go as follows until further order of this court:
(a) The Father shall move out of the matrimonial home by 4 pm on April 21, 2017; (b) The Mother shall have exclusive possession of the matrimonial home; (c) After moving out, the Father shall not attend within 100 meters of the matrimonial home without the written consent of the Mother; and (d) The Mother shall not list, sell or further encumber the matrimonial home without the written consent of the Father.
Miscellaneous
[72] The Mother seeks an order that the matrimonial home not be sold before trial or that she be given an opportunity to refinance the mortgage to buyout any equalization interest the Father may be due. Such orders are not appropriate on an interim motion.
[73] The court file is difficult to follow because the Continuing Record is not properly organized or tabulated and, because of the many voluminous affidavits were filed late and not included in the Continuing Record. Some of the affidavits are not properly numbered.
[74] Counsel are directed to attend at the Trial Coordinator’s Office to properly organize and tabulate all filings in this case in a chronological order.
Ricchetti, J. Date: April 18, 2017