CITATION: Davidson v. Davidson, 2017 ONSC 7469

COURT FILE NO.: FC-17-2483

DATE: 2017/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Susan Faye Davidson

Applicant

– and –

James Douglas Davidson

Respondent

Peter S. Mirsky, Counsel for the Applicant

Wade L. Smith, Counsel for the Respondent

HEARD: December 12, 2017

Endorsement

SHELSTON, J.

[1] The parties married on August 10, 1996 and separated on August 1, 2017. There are three children of the marriage namely Shelby (age 19), Brooke (age 18) and the youngest Chloe (age 14).

[2] On November 30, 2017, the applicant commenced her application and on December 5, 2017 appeared seeking an ex parte order. Justice Sheard ordered that the motion materials be served on the respondent and found that the matter was urgent. The evidentiary record consists of an affidavit from the applicant, an affidavit from the respondent and the daughter Shelby and an updating affidavit from the applicant regarding the youngest child Chloe.

[3] The applicant seeks a temporary order before the case conference scheduled to proceed on March 9, 2018 seeking the claims for relief set out in the notice of motion at tab one of the continuing record which includes:

(a) exclusive possession of the matrimonial home located at 3161 Paden, North Gower, Ontario;

(b) an order that the youngest child Chloe reside with the applicant in the matrimonial home;

(c) interim child and spousal support of $2500 commencing December 1, 2017;

(d) a restraining order against the respondent from attending the matrimonial home;

(e) that the respondent abstain from being within 900 metres or from communicating directly with the applicant, unless through counsel, and police enforcement to remove the respondent from the matrimonial home.

[4] The three children all reside at different locations. Shelby, currently attending Algonquin College, has been residing with her father; Brooke has been attending Trent University and Chloe has been residing with her mother and attending South Carleton High School.

[5] The applicant receives a disability pension and the respondent is the owner and operator of an excavating business located behind the matrimonial home.

Exclusive possession of the matrimonial home

[6] The applicant’s position is that she should be permitted to return to the matrimonial home with Chloe. The respondent’s position is that the parties should share the home or he should have exclusive possession and Chloe should live with him.

[7] The applicant is the owner of the matrimonial home. The respondent must drive past the matrimonial home to access his equipment which is approximately 50 metres behind the home. The respondent accesses the equipment in the garage usually 4 to 5 times a day.

[8] The matrimonial home is currently listed for sale for $799,000 but has not received any offers to purchase. The respondent admits that to lessen tension he stayed away from the home as much as possible but by mid-October 2017, he and his daughter Shelley moved into a rental unit in Ottawa that was available until December 15. The applicant alleges that the respondent moved out August 11, 2017.

[9] Both parties’ affidavits allege threats, intimidation, drunk driving, screaming at each other and unilateral actions. At this stage of the litigation, I cannot make findings of credibility.

[10] The documentary evidence provides me with little information regarding the access that Chloe has had to her father and her reaction. Further the respondent, responding to the applicant’s affidavit, provides no information as to why he returned on November 22, 2017 and does not respond to the applicant’s allegations contained in her affidavit of December 4, 2017.

[11] On the evidence that I have reviewed, I find that on November 22, 2017, the respondent attended at the matrimonial home at 10:30 pm and announced that he was moving back into the home. The mother felt intimidated and left the home with the child Chloe. On November 23, 2017 the applicant returned with the Ottawa Police to retrieve personal items. Since that time the applicant and the child had been residing with a friend in a neighbouring community.

[12] Chloe was hospitalized from September 25 to 29, 2017 because of an attempt to take her life by slashing her wrists. On November 15, 2017, the school called the applicant to pick the child up because she was suicidal. On December 7, 2017 the child cut her wrists at school and told the applicant she couldn’t handle the stress of the separation and she was concerned that the respondent would grab her and take her to live with him.

[13] I cannot decide on the evidence before me as to whether or not the respondent has attempted to negatively influence Chloe or that he is the reason she is feeling so much stress. I do find that this child needs to be insulated from the parties’ separation.

[14] While both parties have a right to exclusive possession of the matrimonial home, I find that the parties cannot share the residence. The various allegations going back and forth between the parties prevent that from occurring.

[15] I accept that the applicant may have alternative accommodations through the family and that the respondent may have accommodations through friends. The applicant’s income is derived from a disability pension and the Child Tax Credit while the respondent’s income is derived from his excavating business. The respondent’s income tax returns indicate an annual income in the $20,000 range. The applicant seeks to impute an income to the respondent in the $200,000 range. At this stage in the litigation I cannot undertake such an inquiry but the father’s business is paying certain expenses for the home.

[16] It appears to me that he earns more than $20,000 a year. He owns a business with significant equipment and is a co-owner of a house listed for sale at $799,000. Between the parties, I find that the respondent has the better financial ability to obtain alternative accommodations.

[17] My concern is regarding the youngest child Chloe. She has not been residing in her home since November 22, 2017. She did not go to school for a period of time but she has now returned. The incidents regarding her hospitalization and the attempts at suicide as recently as cutting her wrist on December 7, 2017 require the court to protect this child and to act in their best interests.

[18] The status quo from August to November 22, 2017 was that the applicant and Chloe resided in the matrimonial home. Despite having the ability to live in the short term accommodation until December 15, 2017, the respondent unilaterally decided to return to the home on November 22, 2017 causing the mother to move with Chloe.

[19] The respondent has not seen his daughter since November 22, 2017. The respondent has not asked for a specific order for access. As I discussed with the parties during the motion, their daughter is suffering as a result of the separation and she is exhibiting very serious signs of mental health challenges. The parties have agreed that the Office of the Children’s Lawyer will be appointed but that may take months and this child needs assistance now. I understand that the child is seeing two counsellors and a psychologist at the Children’s Hospital of Eastern Ontario.

[20] At the motion, I was advised that Chloe was seeing her father on a fairly regular basis up until November 22, 2017. Due to the mental health issues, I will not make an order for access but Chloe should see her father again and such a decision should be made in consultation with her health care professionals.

[21] In the circumstances, I award the applicant, on a temporary and without prejudice basis, the exclusive possession of the matrimonial home and its’ contents and order that Chloe reside with her mother.

[22] I order the respondent to vacate the matrimonial home by 5 pm on December 15, 2017.

Child and Spousal Support

[23] At this point, I will not make an order for child or spousal support. That issue requires more information and is not an urgent matter. However, I will make an order requiring the parties to share in the expenses related to the matrimonial home.

Restraining order

[24] The applicant seeks a restraining order. During arguments Mr. Mirsky agreed that having a geographical restriction such as 50 yards would be impractical considering the respondent needs to access the back of the property for his business.

[25] The applicant alleges that the respondent has been verbally abusive and made verbal threats to her. She is afraid of the respondent and for that reason left the matrimonial home on November 22, 2017. The respondent denies the allegations.

[26] The applicant alleges that after the separation the respondent warned her several times not to have friends over at the matrimonial home. She indicates that at the end of August 2017 the respondent attended at the home and when she attempted to leave he blocked her with his vehicle. In the second week of October the respondent’s girlfriend’s brother chased her with the vehicle and allegedly made threats. On November 11, 2017 the respondent blocked both entrances and exits to the matrimonial.

[27] The respondent’s evidence is that the incident at the end of August was an attempt by the respondent to prevent the applicant from driving as she had been drinking. Regarding the alleged October incident, the respondent states that it actually occurred in August when the applicant, in anger drove to the respondent’s girlfriend’s residence and had a confrontation with her brother. With respect to the incident November 11, the respondent admits that he was upset that the applicant was going to have a party at the matrimonial home and he used the backhoe to block the driveway so people could not park cars. The applicant replied by cutting the lock off the entrance of the adjacent property.

[28] Upon review of the specific allegations, the police reports and the affidavit of Shelby, I cannot conclude that the evidence rises to the level requiring a restraining order. I accept that that the applicant may be intimidated by the respondent, for whatever reason, but the allegations contained in the affidavit material, which are denied by the respondent, have not met the civil burden of proving on a balance of probabilities that the alleged events or comments were made or occurred as alleged.

Disposition

[29] I make the following order:

(a) as of December 15, 2017 at 5 pm, the applicant is granted exclusive possession of the matrimonial home located at 3161 Paden Road, North Gower, Ontario and its’ contents and the respondent shall not enter into the matrimonial home at any time;

(b) the parties shall not communicate with each other except through counsel;

(c) the father shall have access to Chloe, at her discretion;

(d) the mother shall pay the line of credit in the amount of $1425 per month;

(e) the respondent shall pay the expenses for the matrimonial home being property taxes, property insurance, electricity, telephone, cell phone, Internet, gas and oil, $70 per month for car insurance and license related to the business totalling approximately $1659 per month.

(f) I vacate the case conference on March 9, 2018 at 2 pm and order that the parties shall contact the trial coordinator’s office by December 15, 2017 to schedule a case conference to occur no later than January 30, 2018.

[30] On the issue of costs, I find that the success has been divided. If the applicant seeks costs, she shall provide her cost submissions not to exceed two pages plus a Bill of Costs and any offers to settle to be provided by January 5, 2018. The respondent may file his cost submissions not to exceed two pages plus a Bill of Costs and any offers to settle by January 19, 2018.

Mr. Justice Mark Shelston

Released: December 13, 2017

CITATION: Davidson v. Davidson, 2017 ONSC 7469

COURT FILE NO.: FC-17-2483

DATE: 2017/12/13

ONTARIO

SUPERIOR COURT OF JUSTICE

RE Susan Faye Davidson, Applicant

AND

James Douglas Davidson, Respondent

BEFORE: Shelston J.

COUNSEL: Peter S. Mirsky, counsel for the Applicant

Wade L. Smith, counsel for the Respondent

endorsement

Shelston J.

Released: December 13, 2017