COURT FILE NO.: FC-18-2466

DATE: 2019/07/29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kristin Kopra, Applicant

-and-

Joseph Anthony Moreau, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Paul Fitzgerald for the Applicant

Aaron Mackenize for the Respondent

HEARD: July 9, 2019

ENDORSEMENT

[1] Ms. Kopra seeks an order granting her exclusive possession of the matrimonial home. The home is in Ms. Kopra’s sole name. She owned the home before marriage. The impact of granting her exclusive possession would be that Mr. Moreau, and his two children, would need to vacate the home and find alternate accommodation. Mr. Moreau’s two children from a previous relationship, ages 10 and 17, reside with him on an equal timesharing arrangement.

[2] The parties married in 2011. They separated in August 2018. Since separation, they have continued to reside in the matrimonial home, although Ms. Kopra has repeatedly asked Mr. Moreau to move out since their separation.

[3] Ms. Kopra is 47 years old. She is employed as a school principal. Her annual income is approximately $118,000.

[4] Mr. Moreau is 55 years old. He is employed part-time as a bus driver. His annual income from this employment is approximately $15,000 per year[^1]. He supplements his income by drawing down from RSP savings, such that his total annual income is approximately $42,000[^2].

[5] From 2010 to June of 2015, Mr. Moreau worked as an outreach worker and mental health therapist. It is not clear what his salary was in this position. Ms. Kopra states that she believes it was between $45,000/yr and $55,000/yr. Mr. Moreau does not address this directly in his affidavit but states he earned approximately $38,000 in this position in 2014, and $34,500 in 2015 (although this employment ended in June of 2015).

[6] Mr. Moreau states that due to anxiety, he is not able to return to work in the same field. He has not produced any medical records in support of this position, despite the Court ordering Mr. Moreau to do so within 30 days of March 14, 2019. Mr. Moreau states, however, that he has been making reasonable efforts to find employment since 2015 but has been unsuccessful. Mr. Moreau has not provided any material in his affidavit in support of these efforts. Ms. Kopra’s position is that Mr. Moreau has not made reasonable efforts to find employment.

[7] Mr. Moreau acknowledges that he and his children will, at some point in the future, vacate the matrimonial home, but he states he cannot afford to do so until he obtains employment.

[8] The issue to be decided is whether I should grant Ms. Kopra interim exclusive possession of the matrimonial home, based on the factors set out under section 24 of the Family Law Act[^3]. Ms. Kopra also seeks an order for disclosure that she states are outstanding from a previous order made on March 14, 2019.

[9] For the reasons set out below, I make an order granting Ms. Kopra interim exclusive possession of the matrimonial home effective August 30, 2019, and make a further order for disclosure.

Preliminary Matter – Mr. Moreau’s motion for spousal support

[10] Mr. Moreau served a Notice of Motion seeking the dismissal of Ms. Kopra’s motion for exclusive possession but in the alternative that Ms. Kopra pay him interim spousal support of $950 per month.

[11] Ms. Kopra served her Notice of Motion on May 2, 2019. Mr. Moreau did not serve his responding affidavit until July 3, 2019, along with his Notice of Motion seeking spousal support.

[12] Mr. Moreau served his motion for spousal support late. The Family Law Rules[^4] require Mr. Moreau to serve his motion no later than six days before the motion date[^5]. This required service by June 28, 2019[^6]. The consequence of this late service is that Ms. Kopra did not have time to prepare, serve and file a responding affidavit. Given Mr. Moreau had Ms. Kopra’s motion material since May 2, 2019, and the parties had discussed Ms. Kopra’s intention to schedule a motion at the March 14, 2019 case conference, the late service of Mr. Moreau’s material cannot be condoned or excused. I adjourn his motion for spousal support to another date to be scheduled by him through the Family Counter.

Should I grant Ms. Kopra interim exclusive possession of the matrimonial home?

Applicable Law

[13] Section 24 of the Family Law Act provides that a court may grant an order of interim exclusive possession of the matrimonial home. In determining whether to make an order for exclusive possession, the court is required to consider several factors[^7]:

(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.

In determining the best interests of a child, the court is required to consider[^8]:

(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.

Analysis

[14] I find that Ms. Kopra should be granted interim exclusive possession of the matrimonial home. In doing so, I have considered all of the factors set out under section 24.

[15] The home environment is unpleasant, unhealthy, poisonous, and psychologically abusive towards Ms. Kopra. I accept Ms. Kopra’s evidence that Mr. Moreau is intentionally acting in a manner in the home calculated to produce anxiety and psychological stress upon her. Although Mr. Moreau denies he abuses alcohol and that he has acted improperly towards Ms. Kopra, his affidavit material does not contain credible denials to the numerous instances related by Ms. Kopra, and the numerous exhibits she attaches to her material in support of her allegations. Ms. Kopra’s exhibits include evidence that Mr. Moreau has defaced wall hangings in the home and has repeatedly left erratic and aggressive messages directed at Ms. Kopra. These exhibits are consistent with Ms. Kopra’s allegations regarding Mr. Moreau’s conduct, which he has not specifically denied. Mr. Moreau does not deny, for example, playing loud music while Ms. Kopra is sleeping, nailing a steel sword to the wall, nailing a pay of slippers to the wall, cutting a shelf with a knife at the entrance of the home, punching a hole in a wall, or waking Ms. Kopra up in the middle of the night to argue with her. Mr. Moreau’s general denial that he has acted aggressively towards Ms. Kopra is also inconsistent with his letters apologizing to her for his hurtful conduct.

[16] Mr. Moreau also does not deny that he caused a fire that destroyed most of Ms. Kopra’s home in 2016, which displaced the parties from home for nine months. Mr. Moreau caused this fire by leaving a smudging bowl unattended, allegedly while intoxicated. After this incident, Mr. Moreau did not smudge in the home again until after the separation, when he has done so with aggressive notes directed at Ms. Kopra. Given the past incident, I find Mr. Moreau is intentionally seeking to cause anxiety to Ms. Kopra.

[17] It is not in the best interests of Mr. Moreau’s children to remain in such a home environment. Mr. Moreau acknowledges that he and his children will need to move at some point. I find that it is in the best interests of his children to do so now, during the summer school break. The children have alternate accommodation with their other parent if needed. The children will be able to continue to attend the same school.

[18] I have considered the children’s views and preferences. Mr. Moreau has attached a statement from his 17-year-old that makes it clear that the child is uncomfortable in the home environment and does not wish to continue to reside with Ms. Kopra. I accept that the children’s views and preferences are that they do not wish to move. However, Mr. Moreau has acknowledged that they will be moving in the future. I find that it is in the children’s best interests to make this move now, during the summer school break.

[19] Ms. Kopra’s income is higher than Mr. Moreau’s is, at approximately $118,000/yr. However, I accept her evidence that she cannot afford to pay all of the costs of the matrimonial home, as she has been, and pay for alternate accommodations. The expenses of the matrimonial home total approximately $2,300 per month. In addition, Ms. Kopra has debt payments of approximately $1,500 per month. Ms. Kopra also does not have any available savings from which she can draw from to cover any shortfall.

[20] I find that Mr. Moreau, on the other hand, does have available funds that he can use to find alternate accommodations. Mr. Moreau had $43,000 in RSP savings and $10,000 in cash savings at the time of separation that is available to him to use to find suitable alternative accommodation. Mr. Moreau has not provided the current values for these savings in his financial statement, and therefore, I conclude that at least these amounts continue to be available to him. There is also a basis for finding that these savings should be higher given Mr. Moreau’s failure to contribute to the expenses of the home after separation[^9].

[21] Mr. Moreau reports his income on his financial statement as being $38,377/$42,000 per year[^10], including income he draws from his RSP. Given Mr. Moreau has been living off his RSPs as income. I find that it is reasonable for him to continue to draw income from these savings and that if he does so, he can afford alternate accommodations. Mr. Moreau’s financial statement also shows that he does not have any current debt, which means that he is not required to make monthly debt payments.

[22] I accept Ms. Kopra’s evidence that there are a large number of three bedroom rental units available near the matrimonial home for $2,000/m. There are also a large number of three bedroom rental units available in Ottawa for $1,500/m.

[23] I find that Mr. Moreau’s plan to delay moving out until he finds employment is not a credible one, particularly when he states he has been making efforts to find employment since 2015.

[24] Mr. Moreau has also delayed in responding to the legal issues arising from the separation. He served his Answer late and has still not provided disclosure needed to address the equalization issues. I agree with Ms. Kopra’s concerns that Mr. Moreau has been content to do very little to move this matter towards a resolution while allowing her to pay all of the household bills. It is not reasonable, nor just, to delay Mr. Moreau’s inevitable move out of the matrimonial home due to his delays in responding to this matter or in making reasonable efforts to find employment. To the extent that forcing Mr. Moreau to vacate the home motivates him to address the issues arising from the parties’ separation by completing his financial disclosure and finding employment, I find this is in the best interest of the children.

[25] I acknowledge that Mr. Moreau may be entitled to interim spousal support. His motion for such spousal support will be determined on the return of his motion with proper service. His motion will address issues related to his ability to earn income and if he has made reasonable efforts to do so.

[26] At the same time, Mr. Moreau has not provided any medical evidence that impacts on his ability to earn income, which was required to be produced under the March 14, 2019 Order. While I am not determining Mr. Moreau’s claim for spousal support, within this motion I am concerned about his efforts to take reasonable steps to increase his income, as he appears capable of earning significantly more than his present employment.

[27] I also acknowledge that Mr. Moreau may be entitled to an equalization payment. The determination of that issue, however, is delayed due to Mr. Moreau’s failure to provide complete financial disclosure, in particular, the value of his interest in the Alberta property at the date of separation. It is in Mr. Moreau’s interest to expedite the productions of his financial disclosure so that this issue may be addressed. I am not prepared to reward his delay by accepting this as a reason to extend his stay in the matrimonial home for this reason.

[28] There are no existing orders under Part I of the Family Law Act nor any support orders.

[29] There is no written agreement between the parties regarding possession of the matrimonial home.

[30] I also accept Ms. Kopra’s evidence that she had fully furnished the matrimonial home before Mr. Moreau moved into the home, and that it was her insurance that paid for the replacement of the contents after the fire. Accordingly, I also grant Ms. Kopra exclusive possession of the contents of the matrimonial home except for Mr. Moreau and his children’s personal belongings.

Disclosure

[31] Ms. Kopra seeks an order requiring Mr. Moreau to provide disclosure related to the various assets that he states he owned on the date of marriage and date of separation, as well as documents related to his dispute with this employer due to his dismissal in 2015. Ms. Kopra has been requesting this information since April 2, 2019. Mr. Moreau has not provided any additional disclosure in response to these requests, despite his counsel advising on June 21, 2019, that Mr. Moreau would provide additional disclosure “shortly.”

[32] The disclosure requested is relevant to the issues in dispute and is proportional. I order Mr. Moreau to provide the disclosure requested at paragraph 48 of Ms. Kopra’s affidavit sworn June 28, 2019, within 30 days.

Disposition

[33] For the reasons above, I order the following:

1. Ms. Kopra shall have interim exclusive possession of the matrimonial home located at *** Walkey Road effective August 30, 2019.

2. Ms. Kopra shall have exclusive possession of the contents of the matrimonial home except for Mr. Moreau’s and his children’s personal belongings.

3. Mr. Moreau shall be required to vacate the matrimonial home on or before August 30, 2019.

4. Until August 30, 2019,

a. Mr. Moreau shall not change the use or condition of the matrimonial home, nor affect any repairs, improvements, or modifications of the property without the written consent and approval of Ms. Kopra. This includes that Mr. Moreau shall not nail or otherwise attach or affix any items to a wall or other part of the house.

b. Neither party shall interfere with or disturb the other’s quite use and enjoyment of the property. Both parties shall keep noise to a minimum between the hours of 10:00 p.m. and 7:00 a.m.

c. Each party shall be responsible for ensuring that the property is kept in a clean condition.

d. Each party shall ensure that they are polite and respectful to the other while in the home.

e. Mr. Moreau shall be responsible for ensuring that his children abide by the same conditions above.

5. I adjourn Mr. Moreau’s motion for interim spousal support to a date to be set by him or his counsel through the Family Counter.

6. Mr. Moreau shall provide the disclosure requested at paragraph 48 of Ms. Kopra’s affidavit sworn June 28, 2019, within 30 days.

Costs

[34] If the parties are unable to agree on the costs of this motion, Ms. Kopra may file submissions concerning costs on or before August 16, 2019. Mr. Moreau may file submissions concerning costs on or before August 30, 2019. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.

Justice P. MacEachern

Date: July 29, 2019

COURT FILE NO.: FC-18-2466

DATE: 2019/07/29

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Kristin Kopra, Applicant

-and-

Joseph Anthony Moreau, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Paul Fitzgerald for the Applicant

Aaron Mackenize for the Respondent

ENDORSEMENT

Justice P. MacEachern

Released: July 29, 2019

[^1]: According to Mr. Moreau’s financial statement sworn March 27, 2019. Mr. Moreau’s financial statement sworn July 3, 2019 states his income from employment is $11,286.

[^2]: According to Mr. Moreau’s financial statement sworn March 27, 2019. Mr. Moreau’s financial statement sworn July 3, 2019 states his total annual income is $38,377.

[^3]: Family Law Act, R.S.O. 1990, c.F.3, as am

[^4]: Family Law Rules, O.Reg. 114/99 as am.

[^5]: Family Law Rules, r. 14(11)

[^6]: Family Law Rules, r. 3(4), Saturday and Sunday do not count because the time-period is less than 7 days. July 1st was a holiday

[^7]: Family Law Act, s.24(3)

[^8]: Family Law Act, s.24(4)

[^9]: Mr. Moreau states he contributed $900 towards the home expenses in August 2018 and $995 in September 2018. He does not state he has contributed any amounts to the home expenses since September 2018.

[^10]: According to Mr. Moreau’s financial statement sworn March 27, 2019, his total annual income is $42,161. According to Mr. Moreau’s financial statement sworn July 3, 2019, his total annual income is $38,377.