Court File and Parties

COURT FILE NO.: FS-16-414146

DATE: 20180409

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jennifer Montemarano, Applicant

AND:

Robert Montemarano, Respondent

BEFORE: Kiteley J.

COUNSEL: Jaret Neil Moldaver and Jesse Rosenberg, for the Applicant

Elliot Birnboim and Katherine Long, for the Respondent

HEARD: February 13, 2018 and March 16, 2018

SUPPLEMENTARY ENDORSEMENT

[1] In an endorsement released March 5, 2018[^1] I dealt with the issues of temporary child and spousal support and interim disbursements. At paragraph 52 I listed the issues that I had not addressed and at paragraph 59 directed counsel to confirm in writing their agreement as to the remaining issues as well as provide a schedule for making submissions on the three costs issues.

[2] In a letter dated March 16, 2018, counsel advised that the Applicant’s motion for an order for interim exclusive possession of the matrimonial home and the Respondent’s motion for an order for “global mediation” remained to be addressed. From that I infer that counsel did not appreciate my too subtle suggestion that they resolve those issues. Hence this endorsement. On the issue of making submissions as to costs on the three issues, counsel proposed a schedule that started after release of this supplementary endorsement.

Motion by Applicant for temporary exclusive possession of the matrimonial home

[3] In her affidavit sworn April 13, 2017 the Applicant asserts that it is in the children’s best interests that an order be made because they have lived in the home all their lives; they attend a local school that is within walking distance; the fabric of the children’s lives is woven in the neighbourhood; the children have suffered the burden of their parents’ separation without unnecessarily further disrupting their lives, at this juncture. The Applicant’s family lives in Manitoba and she asserts that she has no alternative accommodation. The Respondent has access to multiple alternative accommodations. At the date of their physical separation in December 2016, the Respondent moved into a condominium unit that he or one of his corporations owned and he subsequently moved into a home in close proximity to the matrimonial home. There are outstanding financial issues including final child and spousal support.

[4] At paragraph 51 the Applicant said as follows:

Finally, I have had little peace of mind and lack of privacy since the date of our physical separation, in that Rob has continued to maintain access to this matrimonial home. Accordingly, he is at liberty to enter this home at any time, without notice to me, or without reasonable notice to me, which he has already done, including unilaterally removing some of the home’s contents without notifying me in advance and without my consent.

[5] In paragraph 35 (a) of his affidavit sworn August 3, 2017, the Respondent said the following:

Jennifer may have time limited possession of the home (which is in my corporation’s name) until May 1, 2018 (that will represent 3 [sic] years since separation), pending further agreement or order of the Court, at which point I will be at liberty to take steps to sell the property.

[6] In paragraph 68 of his affidavit sworn August 3, 2017 the Respondent said that the motion for exclusive possession is “unnecessary and exaggerated” in that he does not come and go. He said that he went to retrieve his belongings and he has attended to pick up the children. He insisted that “there is absolutely no basis for any order for exclusive possession, which I oppose”.

[7] At paragraph 69 and 70, he said as follows:

However, for practical and efficiency reasons, I am content that Jennifer remain in the home until next spring (provided I receive credit for this in any interim support determination).

On this basis, while I do not consent to an order for exclusive possession, I am prepared to forbear in taking steps to sell the property until May 1, 2018 – over 2 years following separation to allow for minimal disruption to Jennifer and the children while this matter is resolved. I believe that, given that the value of the home well exceeds any equalization payment she may receive, she is delighted to protract this matter. I am content to wait until the spring of 2018 as there is no reason why we should not be at trial by then.

[8] S. 24 (3) of the Family Law Act provides the criteria for an order for exclusive possession, including the best interests of the children affected; any existing support orders; the financial position of both spouses; the availability of other suitable and affordable accommodation and any violence committed by a spouse against the other spouse or the children. S. 24(4) directs the court to consider the possible disruptive effects on the children of a move to other accommodation.

[9] Title to the matrimonial home is registered in the name of one of the Respondent’s corporations but ownership is not relevant pursuant to s. 24(1). According to the Respondent, the value of the matrimonial home is in the range of $2.7 to $3 million. There is debt associated with the property for which the Respondent accepts responsibility.

[10] In the earlier endorsement I made orders for temporary child and spousal support so that is a neutral factor. It is not possible to come to conclusions about their respective financial positions because both have excluded assets and liabilities on account of the marriage contract (which the Applicant challenges). However both have significant liquid assets. The Applicant may not have family in Toronto but she has resources to arrange alternate accommodation. The Applicant describes her lack of peace of mind and privacy, but that does not constitute violence in accordance with section 24(3)(f). None of those factors are determinative of the outcome of this motion.

[11] As is clear from his evidence referred to above, the Respondent is anxious to have the case resolved and takes the position that the Applicant is responsible, 2 years after the separation, because all of the issues remain outstanding. His acquiescence in the Applicant having possession was based on his conditions as to resolution and sale. In his affidavit, he did not challenge the evidence of the Applicant that it was in the best interests of the children to remain in the home they had been in for their lives.

[12] In other parts of his evidence, the Respondent describes the circumstances under which he left the matrimonial home and indeed, based on the conduct he described by the Applicant, he said he left because the Applicant “drove him from the home”. The Applicant has also provided evidence as to the circumstances under which he left the matrimonial home. On the record before me, none of that is relevant to this specific issue and I make no findings as to who did what and why he left.

[13] In the factum, counsel for the Respondent takes the position that “none of the criteria for exclusive possession have been met – particularly 2 years having elapsed since separation.” As the excerpt from his evidence demonstrates, the Respondent’s opposition is not grounded in the criteria in s. 24 of the Family Law Act. His opposition is grounded in his attempt to control how the case proceeds, and importantly, when he has the “liberty” to sell the matrimonial home. Furthermore, while the motion is heard two years after the separation, the Applicant launched her motion in the spring of 2017, within months of his departure. I need not refer to the procedural issues that caused a delay in the hearing of the motion until February 2018. Nor do I need to attribute responsibility for the delay. The point is that the Applicant brought her motion within months of the change in their living arrangements.

[14] The only relevant factor is the best interests of the children. They are now almost 12 and 8.5 years old. I accept the uncontradicted evidence that this is the only home they have known; that they attend school in walking distance; that their neighbourhood and community are important to them; and that, having experienced the conflict between their parents, their lives ought not to be disrupted on an interim basis. That is sufficient to warrant an order for interim exclusive possession.

[15] My only hesitation about making an order granting interim exclusive possession to the Applicant is that the Respondent attends at the home for purposes of picking up or returning the children. By this order, I do not intend to interrupt that status quo. I expect counsel to propose (and ideally agree) wording that ensures that the order does not interfere with those transition arrangements.

Motion by the Respondent for an order for “Global Mediation”

[16] As indicated above, the Respondent asks for an order requiring the parties to attend at a global mediation before a specified mediator. At paragraphs 127 to 131 of his affidavit sworn August 3, 2017, the Respondent provided his evidence in support of that request. He attached a letter dated October 6, 2016 sent to Mr. Birnboim in which the Applicant’s former counsel proposed to schedule a mediation with a named mediator “assuming that we are in receipt of your client’s income report during the first week of October.” His lawyer agreed. On October 25, 2016, the named mediator advised counsel that he had a conflict and he suggested an alternate named mediator. The emails indicate both counsel agreed with the alternate mediator.

[17] It appears that Mr. Moldaver was retained shortly after the exchange of those emails because he sent a letter to Mr. Birnboim dated November 2, 2016. In his letter dated November 8, 2016, Mr. Birnboim pointed out that the Applicant had “opted not to proceed with mediation.”

[18] The Respondent deposed that he wished “to hold Jennifer to the agreement reached between counsel to have” the alternate mediator conduct a mediation.

[19] Not surprisingly, the request is opposed.

[20] I dismiss that request. The letter dated October 6, 2016 was focused on the question of the Respondent’s income. That could hardly be described as a “global mediation”. The exchange between the lawyers indicates no more than consensus that that might be an appropriate route to discuss his income (and therefore child and spousal support) on certain conditions. The Applicant also challenged the marriage contract. There is no reference in any of the communications to that issue being the subject of mediation. In the letter dated November 8, 2016, it appears that Mr. Birnboim then acquiesced in the position the Applicant took. Contrary to the Respondent’s assertion in his evidence and his counsel’s factum, there was no agreement to “globally mediate” the matter.

[21] The cases to which counsel have referred do not apply. In Cutaia-Mahler v. Mahler[^2] the court articulated general principles of dispute resolution In Kay v. Korakianitis[^3] the Applicant brought a motion for an order under section 6.1 of the Arbitration Act in circumstances in which the parties had agreed in a written Interim Separation Agreement to execute a mediation/arbitration agreement and in which the court held that the parties had agreed on the essential terms and the signing of the agreement was “simply a performance obligation”. In Thomson v. Thomson[^4] the Respondent brought a motion pursuant to s. 7(1) of the Arbitrations Act to stay a proceeding and the Court found that the relief claimed in the Application fell within the scope of the dispute resolution provision in the parties’ separation; and that that was not strenuously opposed by the mother’s counsel.

ORDER TO GO AS FOLLOWS:

[22] Effective the date of this endorsement, the Applicant shall have interim exclusive possession of the matrimonial home subject to further order or agreement, provided that the Respondent may continue to attend at the home for purposes of picking up and returning the children and this order does not change the status quo in that regard.

[23] The Respondent’s motion for an order compelling the parties to attend with the named alternate mediator for “global mediation” is dismissed.

[24] Counsel shall forward an approved draft order to my attention for signing.

[25] If by April 23, 2018 the parties have not agreed as to costs of the attendance before Kruzick J. on November 2, 2017, the costs of the settlement of the parenting issues, and the costs of the motions I have heard, then counsel shall make written submissions not exceeding 5 pages double spaced (together with costs outline and offers to settle) on the following timetable:

(a) the Applicant: May 7, 2018

(b) the Respondent: May 22, 2018

(c) the Applicant (if any): May 31, 2018.

Kiteley J.

Date: April 9, 2018

[^1]: 2018 ONSC 1481 [^2]: no citation provided [^3]: 2007 CanLII 29278 [^4]: 2012 ONCJ 141