Court File and Parties

COURT FILE NO.: FC-17-2220 DATE: 2018/08/15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANNE MARIE CECILE CLAIRE MURRAY – Applicant v. SUHAIL MASOOD CHOUDHARY – Respondent

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: Thomas Hunter, for the Applicant Suhail Masood Choudhary, Self-Represented

HEARD: March 29 and April 3, 2018

AMENDED ENDORSEMENT

The text of the original endorsement was amended on August 15, 2018 and the description of the amendments are appended.

Introduction

[1] In December 2017, shortly after commencing her application, the applicant sought leave to bring an urgent motion for an order granting her exclusive possession of the parties’ Ottawa home and a restraining order against the respondent. The request for an urgent motion was denied. The matter proceeded to a case conference at which the applicant’s motion was scheduled for March 31, 2018.

[2] The motion was scheduled for two hours. For a number of reasons, it was not possible to complete the motion in two hours. First, delays were encountered in an effort to determine what materials, if any, the respondent had filed in response to the motion. Second, the relief sought by the applicant on the return of the motion included leave to admit an audio recording as evidence. The hearing of the motion commenced on March 31 and was completed on April 3, 2018.

Background

[3] The parties were married in May 2007. In the fall of 2017, the respondent travelled to Germany with the stated intention of pursuing post-secondary education. The applicant supported the respondent in that endeavour. After a number of months the respondent returned to Ottawa, where he and the applicant had been living for a number of years.

[4] In her application, the applicant identifies October 9, 2017, as the date of separation. The respondent appears to dispute that the parties separated. The respondent relies on the alleged lack of separation to justify the method he used to gain access to the home he shared with the applicant before leaving for Germany.

[5] I say “appears” to dispute the separation, because the respondent has not yet formally filed an answer, a financial statement, a notice of (cross-)motion dated March 16, 2018, and an affidavit sworn by him on the same date.

[6] Pursuant to the March 23, 2018, endorsement of Master Fortier, the respondent’s motion for leave to file the aforementioned documents without the requisite notices of assessment was not granted. The Master’s endorsement provides that the respondent’s motion in that regard will be reconsidered when the respondent is able to satisfy the court that he has possession of or has taken reasonable steps to obtain, from the Canada Revenue Agency, copies of the notices of assessment.

[7] In support of the relief requested on her motion, the applicant relies on two affidavits sworn by her, and affidavit evidence from each of a neighbour, the two tenants residing in the home before the respondent’s return in the fall of 2017, a co-worker, and the applicant’s parents. The affidavit evidence provides support for the applicant’s allegation that the parties’ relationship has been fraught with emotional and, at times, physical abuse.

[8] The respondent appears to deny or minimize his conduct as alleged over the years. He submits that there is (a) no reason why he and the applicant cannot continue to share the home, and (b) no basis for the restraining order requested by the applicant.

The Issues

[9] The issues to be determined on this interim motion are:

1. To what relief, if any, is the applicant entitled with respect to the home located at 53 Bramblewood Crescent, in the City of Ottawa?
2. Is the applicant entitled to a restraining order and, if so, on what terms?

Disposition

[10] The applicant is granted exclusive possession of the home and an interim restraining order against the respondent. The relief granted is subject to the terms set out in the concluding substantive section of this endorsement.

Preliminary Issue

[11] The endorsement of Master Fortier makes it clear that the respondent’s documents, although physically in the court file, had not, as of the return of the motion, been accepted by the court as filed. In submissions, counsel for the applicant made a few references to the contents of the respondent’s affidavit. The references made were that the respondent’s affidavit, even if properly filed, was almost totally lacking in any evidence specifically relating to the two issues to be addressed on the motion. I agree and find, in any event, that the respondent’s affidavit is not part of the record for the purpose of determining the two issues before me.

Issue No. 1 – The Home

[12] The applicant requests an order granting her exclusive possession of the home. She relies on s. 24(3)(f) of the Family Law Act, R.S.O. 1990, c. F.3 (“Act”). It provides that “in determining whether to make an order for exclusive possession, the court shall consider … (f) any violence committed by a spouse against the other spouse or the children”.

[13] The uncontradicted evidence on the motion supports the following findings:

a) Title to the home is in the applicant’s name; b) The applicant is the only mortgagor. She has been and remains solely responsible for the mortgage payments. The monthly payments currently being made by the applicant for the mortgage ($1,450.00), property taxes ($476.85), and insurance ($44.43) total $1,971.28. Until the end of January 2018 the total was $2,361.53 because of previously higher monthly mortgage payments; c) As of late March and early April 2018, the respondent had made no payments towards utilities for the period during which he had been residing in the home alone. The total owing for utilities as of the latter half of January 2018, was in excess of $1,425.00; and d) As a result of the conduct of the respondent, the two tenants, who had been residing in the home, left with the result that there is a loss of rental income from the property.

[14] In her affidavits, the applicant reviews the respondent’s alleged historical abusive behaviour towards her. The alleged abuse dates from 2005 forward. The applicant also reviews what she understands to be the respondent’s historical abuse towards other females. These individuals include the respondent’s first wife, his daughter from that marriage, his sister, and his mother. The respondent’s historical abuse towards other females serves to highlight the applicant’s fear of the respondent and concern for her safety and well-being.

[15] As another form of abuse, the applicant points to her financial support of the respondent in his endeavours and his unfulfilled promises to repay any of the money loaned to him. The financial support is said to be in the tens of thousands of dollars.

[16] A recent form of abuse upon which the applicant relies is the respondent’s behaviour while in Germany. That behaviour relates to a woman with whom the respondent spent time in Germany. Based on the respondent’s conduct, the applicant believes that the respondent:

a) Chose to travel to Germany to be with this woman; b) Never intended to return to Canada after completing his studies; and c) Returned to Canada only when his plans in Germany did not pan out.

[17] Lastly, the applicant relies on the respondent’s conduct following his return to Ottawa —in particular the respondent’s self-help remedy to regain access to the home. On the respondent’s return to Ottawa, the applicant refused him access to the home. The respondent gained access to the home on December 2, 2017, when the applicant was out of the home. He apparently did so through a door inadvertently left unlocked by one of the tenants. After gaining access to the home the respondent changed the locks. The respondent offered the applicant keys to the home.

[18] The applicant’s evidence is that she refused the offer of the keys because of her fear of the applicant. Instead she sought what she describes as refuge at her parents’ home. The applicant chose to move to her parents’ home solely because of the intolerable situation in which she found herself with the respondent. She was able to take only a minimum of her essential belongings when she left the home.

[19] The applicant submits, and I agree, that the type of “violence” to which reference is made in s. 24(3)(f) of the Act, is not restricted to physical violence by one spouse towards the other (see Leckman v. Ortaaslan, 2013 ONSC 7604, [2013] W.D.F.L. 3371, 35 R.F.L. (7th) 98, at paras. 31 and 32). Based on the uncontradicted evidence on the motion before me, I am satisfied that the psychological, emotional, and other abuse with which the respondent has treated the applicant over time falls within the meaning of “violence” within s. 24(3)(f) of the Act. I am also satisfied that the respondent intended that his words and conduct would intimidate and be taken seriously by the applicant (Menchella v. Menchella, 2012 ONSC 6304, [2013] W.D.F.L. 664, 31 R.F.L. (7th) 236).

[20] It is understood that both parties have equal right to possession of a matrimonial home. I note that the relief sought by the applicant, and to be determined when the balance of her motion is heard, is a declaration that the property at 43 Bramblewood Crescent is not a matrimonial home. Understanding that an order for exclusive possession of a matrimonial home can be significantly prejudicial to a dispossessed spouse, I turn to other factors to be considered in the circumstances of this case. I do so without making any finding as to whether the home which the parties shared until the fall of 2017 is a matrimonial home.

[21] The uncontradicted evidence of the applicant is that prior to exercising the self-help remedy on December 2, 2017, the respondent had been searching for independent accommodation. Included as an exhibit to the applicant’s December 2017 affidavit is a copy of a chain of email messages between the respondent and a potential landlord. The messages relate to a room for rent in the landlord’s home. The respondent expressed an interest in renting the room and made an appointment to see it.

[22] In her March 26, 2018 affidavit, the applicant says, “I have obtained documentation to verify that the respondent and his mother stayed at the “Extended Stay” facility from November 17 to November 18, 2017”. The documents are not included as exhibits to the applicant’s affidavit.

[23] I find that the respondent was, at least as of the latter half of November 2017, searching for alternate accommodation. In the email messages exchanged with the potential landlord, the respondent said, “I like to pay all my bills on time”. He clearly attempted to present himself as a person with the means to pay the rent for the room.

[24] As I have already noted, the respondent’s financial statement has not yet been properly filed with the court. The financial statement was served on the applicant, as a result of which she has access to its contents. As an exhibit to her March 26, 2018 affidavit, the applicant attaches a chart comparing the net disposable income of the parties, respectively.

[25] The chart is useful for the purpose of the motion because it is the only method by which any information about the respondent’s financial position is before the court. The chart demonstrates that after the applicant pays the monthly expenses for the home (mortgages, taxes, insurance, and utilities) and approximately $250.00 towards debt incurred by or on behalf of the respondent (student loans), the net disposable income of each of the parties is roughly the same: $3,435.00 for the respondent and $3,685.25 for the applicant. The figures in the chart may not be 100 per cent accurate; they are, however, helpful as a comparison of the relative means of the parties.

[26] I find that the respondent has the means with which to pay for alternate accommodation.

[27] The applicant is granted interim exclusive possession of the home subject to the term set out in my April 3, 2018 endorsement, and to the term set out at item 5 of the applicant’s notice of motion dated December 15, 2017.

[28] With respect to the relief set out at item 6 of the applicant’s notice of motion dated December 15, 2017, there is no evidence that the respondent has in any way encumbered the home. The issue of encumbrances on the home shall be addressed, if necessary, on the return date for the balance of the applicant’s motion and for the respondent’s cross-motion (May 8, 2018 at 10:00 a.m.).

Issue No. 2 – Restraining Order

[29] The applicant’s request is for a permanent restraining order.

[30] In this section of my endorsement, I rely on the finding made above that the respondent has committed “violence” against the applicant such that the parties can no longer reside together in the home.

a) Audio Recordings

[31] The applicant requests that I also consider the contents of an audiotape of several telephone messages left by the respondent for the applicant in the fall of 2017. A voir dire was conducted with respect to the admissibility of the recordings. A transcript of the recordings was filed on the voir dire. The applicant testified as to how the messages were preserved.

[32] It was agreed that I would conduct the voir dire, reserve my decision on the evidentiary issue, and the parties would argue the motion (with respect to both elements of relief sought) on the basis that the recordings are admitted as evidence.

[33] The respondent did not file any evidence and did not testify on the voir dire. The respondent does not deny that the recordings are of messages that he left for the applicant on her Blackberry.

[34] The messages were left for the applicant on October 16, 2017, prior to the respondent’s return from Germany. In the recordings, the respondent is upset because (a) his calls to the applicant were not being answered, and (b) the applicant uses her maiden name when identifying herself on the outgoing message to callers. The recordings are laced with profanities directed at the applicant.

[35] I am satisfied that the recordings meet the criteria for admissibility as evidence relevant to both issues on this motion. The recordings are clear and of good quality. To the extent that there are any indiscernible words, they are few in number and do not detract from the substance of the messages recorded. Most important, the respondent does not deny leaving the messages.

b) Restraining Order

[36] The request for a restraining order is made pursuant to s. 46(1) of the Act. For a restraining order to be made the applicant must satisfy the court that she has “reasonable grounds to fear for … her own safety”.

[37] I note that one of the purposes that s. 46 of the Act serves is “to permit both litigants the opportunity to conduct their litigation in as seasoned an atmosphere as may be possible”. (See: Docherty v. Melo, 2016 ONSC 7579, [2017] W.D.F.L. 248, 85 R.F.L. (7th) 57, at para. 31, quoting Callon v. Callon, 1999 CarswellOnt 2401, 3 R.F.L. (5th) 28, (Ont. Div. Ct.)).

[38] I am satisfied that the past actions and words of the respondent contribute to the applicant’s present fears for her safety and well-being. I am satisfied and find that those past actions and words, in combination with the respondent’s recent actions and words, cause the applicant to have a legitimate, reasonable fear for both her physical and psychological safety.

[39] At this early stage of the proceeding, and in the absence of any evidence from the respondent, I am not prepared to grant a permanent restraining order.

Disposition

[40] In summary, I order as follows:

1. The applicant shall, effective Monday, April 30, 2018 at 5:00 p.m., have exclusive possession of the property located 43 Bramblewood Crescent in the City of Kanata (“Property”);
2. The respondent shall vacate the Property no later than 11:00 a.m. on Monday, April 30, 2018;
3. The respondent shall, prior to vacating the Property, take the steps necessary to return the Property to the condition in which it was on December 2, 2017 (i.e. any damage to the Property since December 2, 2017 shall be repaired);
4. The respondent shall, no later than 1:00 p.m. on Monday, April 30, 2018, deliver to the office of the applicant’s counsel all keys for the Property in the respondent’s possession and any keys the respondent knows to be in the possession of others;
5. The respondent shall, no later than 1:00 p.m. on Monday, April 30, 2018, deliver to the office of applicant’s counsel a certified cheque or bank draft, payable to the applicant, in the amount owing for utilities for the Property from December 2, 2017 to April 30, 2018;
6. Neither party shall be permitted to encumber the Property or to lease any part of the home to one or more tenants without further order of the Court;
7. The respondent shall, pending further order of the Court, be restrained from: a) Molesting, annoying or harassing the applicant; b) Communicating directly with the applicant; and c) Coming within 100 meters of the Property, the applicant’s place of employment, and the residence of the applicants’ parents.
8. The respondent shall, pending further order of the Court, communicate with the applicant through the applicant’s counsel by email, regular mail, or telephone at the office of the applicant’s counsel.

The Respondent’s Cross-Motion

[41] In my endorsement dated April 3, 2018, I stated that the motion and cross-motion, with respect to issues other than exclusive possession and a restraining order, are adjourned to May 8, 2018 at 10:00 a.m. (for three hours). That endorsement does not in any way impact or displace the endorsement of Master Fortier dated March 23, 2018.

[42] The respondent continues to be required to address the deficiencies in his materials as directed by Master Fortier. Unless and until those deficiencies are addressed:

a) The respondent’s motion for an order permitting him to file his answer, financial statement, notice of (cross-)motion, and March 2018 affidavit, without the requisite notices of assessment, remains unheard and undetermined; b) The respondent’s notice of (cross-)motion and supporting affidavit will not be considered filed with the court for the purpose of return of the motion on May 8, 2018; and c) The only relief to be addressed on May 8, 2018 will be the balance of the relief requested in the applicant’s notice of motion dated December 15, 2017.

[43] The respondent has had ample time to address the deficiencies in his materials. If he persists in failing to address those deficiencies he may find it difficult to obtain any indulgences from the court.

Costs

[44] In the event the parties are unable to agree upon costs of the portion of the applicant’s motion heard on March 31 and April 3, 2018, they may make written submissions as follows:

a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs; b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall comply with Rule 4 of the Rules of Civil Procedure with respect to font size; d) The submissions, the documents referred to therein, and case law and other authorities shall be on single-sided pages; e) Written submissions shall be delivered by 5:00 p.m. on the twentieth business day following the date on which this Endorsement is released; and f) In the event any party wishes to deliver a reply to the costs submissions of the opposing party, the reply submissions shall be delivered by 5:00 p.m. on the twenty-fifth business day following the date on which this Endorsement is released. Reply submissions shall comply with paragraphs (a) to (d) above.

Madam Justice Sylvia Corthorn Date: August 15, 2018

APPENDIX

August 15, 2018:

Paragraph 1 in the final sentence the date of March 31, 2017 has been replaced with “March 31, 2018”;

Paragraph 2 the final date of April 3, 2017 in the paragraph has been replaced with “April 3, 2018”; and

Paragraph 44 the second date of April 3, 2017 listed in the second line of the paragraph has been replaced with “April 3, 2018”.