CITATION: Naccarato v. Naccarato, 2017 ONSC 6641

NEWMARKET COURT FILE NO.: FC-16-51844-00

DATE: 20171103

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Kristy Frances Naccarato, Applicant and Dino Naccarato, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: Annamaria Perruccio, Counsel for the Applicant R. Avery Zeidman, Counsel for the Respondent

HEARD: November 1, 2017

Ruling on MotionS

jarvis j.

[1] There are two motions before the court, each of which claims several heads of relief. The common issue involves possession of the matrimonial home in respect to which each party requests exclusive possession or a nesting arrangement. The other issues involve restructuring of a mortgage, or a series of mortgages registered on title to the home, and child and spousal support. Counsel were advised at the outset of argument that only these issues would be addressed.

[2] The applicant mother (“the mother”) requests exclusive possession of the matrimonial home: the respondent father (“the father”) seeks a nesting Order which alternates possession of the home between the parties so as to maintain a stable environment for the children.

[3] The following facts are relevant:

(1) the parties married on June 9, 2001 and, despite an earlier dispute by the mother about their separation date, she has agreed with the father that it will be June 20, 2016;

(2) there are three children the marriage, a boy (“MN”) who is eight years old and twin daughters (“KN” and “EN”) who are five years old;

(3) the mother works for a bank and earns around $120,000 a year;

(4) the father works as an automobile salesmen and estimates that his annual income (base salary and commission) is about $40,000 a year;

(5) the matrimonial home is owned by the mother. She pays almost the entirety of its expenses which total about $6,600 a month;

(6) on May 31, 2017 McGee J. ordered counselling for MN. Costs were later awarded to be paid by the father. These were paid;

(7) on June 19, 2017 McGee J. noted in a case conference endorsement that the parties were to inform the children about their parents’ separation. The parties agreed to do this;

(8) difficulties arose between counsel about scheduling future motion dates, in particular a motion by the mother for exclusive possession;

(9) on October 25, 2017 Bennett J. ordered that the mother's motion proceed on November 1, 2017 due to what he referenced on several occasions was the significant level of toxicity in the home between the parties, and the risk to the children of their further exposure to such conflict;

(10) the mother has catalogued several examples of conduct by the father which are demeaning, confusing (to the children) or provocative towards her. The father disputes these allegations and responds in kind, alleging that the mother is either fabricating conflict or exaggerating so as to better her chances for a favourable possession Order;

(11) the mother has relatives (a sister) in the Aurora area, and others more distant: the father’s parents live about 8 kilometres away from the parties’ home, and have a self-contained basement unit which is vacant but in which the parties lived for several years after they married.

[4] There are other facts, and evidence, to which reference will be made later in these reasons.

Discussion

[5] Section 24(3) of the Family Law Act (the Act) empowers a court to make an order for exclusive possession. Subsection (a) notes the best interests of the children as being a factor which must be considered, and section 24(4) outlines those best interests. It is axiomatic that any order for possession of the matrimonial home should focus on the children’s well-being and stability and remove them as much as possible from their parents’ conflict. Perpetuating a conflict-filled environment cannot be best for children. The court must be cautious though that allegations of conflict are not made on specious grounds or purposed to misrepresent the facts so as to enable a party to “win”.

[6] Having reviewed the parties’ evidence, their exhibits, and hearing counsels’ submissions, the following observations are relevant:

(1) there is a significant, and alarming, level of toxicity in the home. It is manifested through the allegations of poor parenting each party has made against the other, and includes comments made to and by the children which clearly indicate their exposure to inappropriate parental conduct. This toxicity has been carried through to the distressing tenor of communications between counsel;

(2) in an effort to demonstrate the mother’s poor parenting the father provided affidavits from three neighbours. These affidavits suggest surveillance of the mother at all hours of the day, particularly late at night and into the early morning hours. They also describe how the father parents the children inside the home. In my view these affidavits are mostly based on information provided by the father and are more in the nature of cheerleading than having any probative value to the issue of possession. While they affirm that the father loves his children and they him, the affidavits are otherwise unhelpful. The letters which the father has also filed from third parties, and which are unaccompanied by affidavit, are inadmissible: Katz v. Katz[^1];

(3) in her affidavit sworn October 22, 2017 the mother detailed her efforts, after the case conference, to engage the father about how best to tell the children about their parents’ separation. She suggested what the parties could say and even purchased two age-appropriate books, one for MN and the other for KN and EN, to help them understand what was happening. She asked for his feedback. According to the mother the father never responded to her email or a reminder from her lawyer and when the conversation was held he did not participate in the conversation with the children[^2]. Despite a general paragraph by paragraph denial of most of the mother’s allegations by the father there were was no evidence from him disputing this evidence, although he filed three affidavits. The mother’s conduct was child-focussed: the father’s silence suggests a strategy to paint the mother as a bad parent, or at least one whom the children might blame for the break-up of the family;

(4) according to the father, his parents are retired and planning to downsize their residence, but will only allow him to reside at their home if he pays $1,200 monthly rent, less if a nesting Order is made. I do not accept that the paternal grandparents would require rent from their son given his financial circumstances. The impression left with the court is that this position is being taken by the father for strategic purposes. There is no affidavit from the paternal grandparents;

(5) the Continuing Record is already well into six volumes. There have been three motions (including those before this court) and at least two form 14B motions. Little that one parent says is not challenged by the other. The exchange of correspondence between counsel which is recorded as part of the exhibits to each party’s affidavits is voluminous. It is clear to this court that there has been no diminution of conflict and that, in all likelihood, the children will continue to be victimized by exposure to what Bennett J. observed was a toxic environment.

[7] The father proposes a nesting, or week about, Order and has provided the court with several cases in which nesting Orders have been made. These cases have involved situations where there was no clear evidence that the parties could not live and work together (Fournie[^3]) or where neither party disparaged the other party’s parenting skills (Veljanovski[^4]). In Greenhough[^5] Quinn J. made a nesting Order mid-way through a custody trial where the court had a far more robust evidentiary record than in this case. In Grandy[^6], a decision from Nova Scotia, Jollimore J. made a nesting Order where there had already been significant third party involvement (i.e. Department of Community Services) and a temporary nesting-like arrangement in place for some period of time.[^7]These cases are distinguishable on their facts. In the matter before this court both parties disparage the other’s parenting and the underlying circumstances which warranted a nesting Order in Veljanovski, Greenhough and Grandy don’t exist.

[8] In Kooner v. Sangha[^8], Master Caldwell of the British Columbia Supreme Court made a nesting Order based on a balance on convenience test. There was little evidence in the report of the case of the extent to which the children had been involved in, or affected by, their parents’ conflict. That case is also distinguishable.

[9] In Damer-Basso v. Basso[^9], a case upon which the mother relies, Corbett J. observed that the escalating conflict between the parents which had exposed the children to an atmosphere of hostility and recrimination of several months, if not years, in duration needed to end and that “the parties must embark on a new course.”[^10] The home was not to “remain an emotional battlefield.”[^11] It is unclear whether a nesting Order was considered but the father in that case denied having any role in the hostility and, like the father in this case, maintained that he had done nothing to disentitle himself to his possessory right.

[10] In Perks v. Lazaris[^12] McGee J. noted, as a reason for terminating a nesting schedule, a parent’s involvement of a child in his parents’ conflict. In the matter before this court, the father reports that MN has used language to describe an event in which a friend of the mother’s slept over at the home using language or concepts which an eight-year-old would not have used or would not understand.[^13] Elsewhere the father pointed as proof of the mother’s poor parenting her taking a trip to a sister’s residence out of town without notice to him, an unsupported allegation contradicted by an email to him from the mother a month beforehand.[^14] The mother has also made allegations about the father’s parenting, those most often dealing with his oppositional behaviour in the home.

[11] It is not possible at this juncture, without a more robust evidentiary record, to determine the extent to which either parent has involved the children inappropriately in these proceedings but the evidence before this court suggests that it is the mother more so than the father who has taken a more child-focused approach to their parenting obligations and to shielding the children from the negative consequences of the family’s dissolution. She proposed, and pursued, counselling. And was awarded costs. She tried to engage the father in how to tell the children about their parent’s separation. And was ignored. She has acted pro-actively in trying to achieve a more manageable monthly budget by proposing a mortgage restructuring. Which issue had to be argued in a motion for which relief the father could have agreed before conceding his lack of objection during argument.

[12] The court is not unmindful of the maximum contact provisions of section 16(10) of the Divorce Act.[^15] What the children in this matter need is a consistent pattern of parenting free from further risk of their parent’s conflict. Having reviewed the parties’ evidence and notwithstanding the able arguments made by Mr. Zeidman, this court is not persuaded that his client is more reliable than the mother in preferring the children’s interests to his. The children need a break.

[13] Balancing the suitable alternate accommodations available to each party, the evidence is also clear that the father is better able to reside elsewhere than the mother. She shall have temporary exclusive possession of the matrimonial home.

[14] Before argument the court asked the parties to provide their suggestions as to what a nesting Order or exclusive possession Order would look like in the event of the court making the finding they wished. Each party was given, after argument, an opportunity to comment on the other’s proposal as their affidavits were unhelpful in that regard. The Order made below takes some of the parties’ proposals into consideration.

[15] As for the issue of mortgage refinancing, so long as the debt is not increased or the father liable for payment as a guarantor, there is no reason why that should not be ordered. The father’s objection was more about non-consultation than the merits, the effect of which restructuring will be to reduce the monthly housing costs for the mother. Counsel for the father acknowledged in argument that he took “no issue with the restructuring”[^16].

[16] The father requests spousal support. Disparity in spousal incomes is not a reason why spousal support should be ordered. The father has not provided sufficient evidence why he is entitled to any such award at this time. Given that the mother will still be obliged to carry the significant housing cost for the children and her, no award would be appropriate at this time, even if child support was paid.

[17] As the court expects that the father will reside at his parents’ residence and may be obliged to pay rent notwithstanding the court’s skepticism as noted above, no child support should be payable by him at this time.

[18] Accordingly, an Order shall issue as follows:

(1) the mother shall have exclusive possession of the matrimonial home effective the November 6, 2017 (3:00 p.m.). Except for the father’s personal belongings, the contents of the home shall remain there, unless the parties agree otherwise in writing;

(2) the children shall reside primarily in the matrimonial home;

(3) no Order for temporary custody shall be made at this time;

(4) each party is entitled to all information from the children’s healthcare providers and schools. Except for emergency matters, any healthcare appointment for the children shall be communicated to the other parent at least four days in advance and the other parent shall be entitled to attend. The parents can make their own, separate arrangements with respect to school notices and other such events;

(5) the children shall reside with their father as follows:

(a) an alternating weekends from Friday after school to Sunday evening (7:00 p.m.) commencing on November 10, 2017;

(b) commencing the week of November 13^th, and alternating weekly thereafter, from after school on Thursday to the children’s return home on the Friday by 7:00 p.m.;

(c) commencing the week of November 20, 2017 and alternating weekly thereafter, a weeknight dinner on either a Tuesday or Wednesday from after school to 7:00 p.m. at the father’s option, which is to be communicated to the mother by November 19^th no later than 5:00 p.m. That weeknight choice shall remain fixed until further Order or the parties’ agreement otherwise, to be confirmed in writing;

(d) such further and other times as the parties may agree;

(e) the father shall be responsible for all transportation arrangements;

(6) neither party shall discuss this case with the children;

(7) neither party shall disparage the other parent to the children and each party shall refrain from making any such comments about the other parent to third parties where the children are present;

(8) the mother shall forthwith open a Family Wizard account at her expense for the purposes of facilitating communications between the parties, restricted to matters involving the children;

(9) the father’s consent to the mortgage restructuring proposed by the mother is dispensed with and the mother is authorized to proceed with the mortgage restructuring provided that the amount of the principal to be secured is not greater than now exists. The mother shall be authorized to sign all documents needed to effect the restructuring and shall provide the father with full copies of all documents not already produced to the father within 48 hours of registration. The mother shall also provide the father with a complete reporting letter or other communication dealing with the completion of the transaction, also within 48 hours of her receipt of that information;

(10) on a without prejudice basis to either parties’ retroactive or prospective child and spousal support claims, no order as to support is made at this time;

(11) the mother shall file an updated, revised financial statement and Certificate of Financial Disclosure for a June 20, 2016 valuation date by November 30, 2017;

(12) any further disclosure request by either party shall be made no later than December 8, 2017 and answered by December 31, 2017;

(13) questioning may proceed after December 31, 2017 but must be completed by February 28, 2018;

(14) Exhibit “G” to the father’s affidavit sworn October 26, 2017 which references “Without Prejudice” correspondence by the father’s counsel shall be struck from the Continuing Record, although not the Schedule attached dealing with disclosure nor the May 24, 2017 letter from the mother’s counsel responding to the disclosure requested;

(15) the parties shall forthwith schedule a settlement conference to proceed before April 15, 2018. All settlement conference rules are to be followed. The objective is to have all outstanding issues between the parties arising from their marriage breakdown trial-ready for the May 14, 2018 trial sittings of the court;

(16) all other relief as requested by either party in their motion is adjourned to a mutually convenient date.

[19] If the parties are unable to resolve the issue of costs then the mother shall deliver her submissions by November 20, 2017. The father shall deliver his submissions by November 27, 2017. Reply (if any) by the mother shall be filed by December 1, 2017. All submissions shall be double spaced and limited to the three pages, except for the reply which shall be limited to two pages. The costs submissions shall be filed in the Continuing Record. Offers to Settle, bills of costs and any authorities upon which the parties may wish to rely shall be filed no later than December 1, 2017, but not form part of the Continuing Record.

[20] A few final comments.

[21] The children’s well-being is too important to be prejudiced by whatever personal animosity may continue to impact their parents’ relationship. The parent who promotes a meaningful and conflict-free relationship between the children and the other parent, and who remains child focused is the parent who when the court deals with the parenting issues, will be more sympathetically viewed.[^17] The parents should be aware that their conduct will be critically scrutinized by the court on a going-forward basis. A more formal custody disposition may be required if the parties are unable to more co-operatively discharge their parenting duties.

[22] Lastly, every effort should be made now to deal with the forthcoming holiday season. The parties should make arrangements which equally share the holidays with the children, respectful of the other’s extended family and any family traditions. This is what the court will expect in any event.

Justice D.A. Jarvis

Date: November 3, 2017

[^1]: 2014 ONCA 606 [^2]: Mother’s affidavit, paras. 37-40 and Exhibit “E”. [^3]: 1988 CanLII 8651 (ON SC), 1988 CarswellOnt. 289, 16 R.F.L. (3d) 398 (Ont. Dist. Ct) [^4]: 2015 ONSC 9263 [^5]: 2003 CarswellOnt 4541 (Ont. S.C.) [^6]: 2012 NSSC 316, 320 N.S.R. (2d) 385 (N.S.S.C.) [^7]: It is unclear from the reported decision how long that arrangement had been in effect. [^8]: 2014 BCSC 703, 2014 CarswellBC 1100 [^9]: 2003 CanLII 2055 (ON SC) [^10]: Para. [1] [^11]: Para. [3] [^12]: 2016 ONSC 1356 [^13]: See the father’s affidavit sworn October 12, 2017, para. 26e. [^14]: Mother’s affidavit sworn October 22, 2017, para. 51 and Exhibit “G”. [^15]: R.S.C. 1985, C.3 (2nd Supp.)., as am [^16]: Father’s affidavit sworn October 26, 2017, para. 23. [^17]: Reeves v. Reeves, 2001 CarswellOnt 277, [2001] O.J. No. 308, 102 A.C.W.S. (3d) 1116, per Mossip J. at para. 38