Hollinger v. Wang, 2019 ONSC 4807

BARRIE COURT FILE NO.: FC-18-1629

DATE: 20190815

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Megan Ann Hollinger

Applicant

– and –

Zhe Wang

Respondent

Kim S. Kieller, for the Applicant

Jeff J. Li, for the Respondent

HEARD: August 1, 2019

REASONS FOR DECISION

CHARNEY J.:

1The Applicant, Megan Hollinger, brings this motion for exclusive possession of the matrimonial home on a temporary basis.

Facts

2The Applicant met the Respondent, Zhe Wang, while living in China studying traditional Chinese medicine. They were married in China on June 6, 2014. After their marriage, the Applicant returned to Canada. There were several months of separation while the Respondent prepared to immigrate to Canada as a “Sponsored Spouse”. The Respondent moved to Canada in September 2015, and the couple resided in the matrimonial home.

3They separated on March 18, 2018. There are no children of the marriage. The Applicant commenced this family law application on December 21, 2018. The Applicant is 41 years of age, the Respondent is 39.

4The Applicant currently practices traditional Chinese medicine and acupuncture in Barrie, Ontario. The practice is located in the matrimonial home.

5The Respondent found employment when he came to Canada, and has held various positions. He is currently unemployed. The reasons for his periods of unemployment are in dispute, and are not directly relevant to this motion.

6The Applicant is the registered owner of the matrimonial home. It was purchased for approximately $400,000 in December 2014, with a mortgage of approximately $250,000. The Respondent gave the Applicant $145,000 in October 2014, which he alleges she put towards the purchase of the matrimonial home. The Applicant’s position on this issue is unclear, although she does acknowledge receiving a gift of $145,000 from the Respondent in October 2014.

7The Respondent is the registered owner of a two-bedroom condominium in Barrie, which was purchased in February 2018 for $369,000, with a mortgage of $253,000. The condominium remained vacant until July 2018, when it was rented to tenants.

Applicant’s Position

8The Applicant contends that the Respondent has been violent and aggressive towards her. In her affidavit in support of this motion she describes a number of incidents from November 2015 to November 2017.

9Over this period the violence escalated, and, in September 2017 the Respondent kicked open a closed door and slammed his head into hers. Following this incident the Applicant moved to her parents’ home.

10The Applicant continued to practice traditional Chinese medicine out of the matrimonial home, even when she lived with her parents. The Applicant contends that this situation was very difficult, because the Respondent would make noise by, for example, slamming doors. The practice of traditional Chinese medicine requires an environment of peace and calmness.

11The Applicant alleges that she returned to live in the matrimonial home in early 2019 because she suffers from multiple allergies that were aggravated in her parents’ home environment. This allegation is supported by a letter from her physician, dated February 2019, which states that the Applicant’s health condition is worsening due to exposure to “environmental toxins” at her parents’ home. The environmental toxins are not identified, nor are the nature of her allergies. It is not clear how her parents are able to reside in a home with “environmental toxins”.

12The Applicant and Respondent now sleep in separate bedrooms in the home.

13The Applicant contends that their current living arrangement has become untenable because the Respondent becomes angry and wants to discuss their family law dispute while she is at her practice. She describes an incident in June 2019 in which she alleges that the Respondent yelled at her and threatened that they would be fighting in court for years until he got back every dollar he brought to Canada. In July 2019 she alleges that the Respondent approached her during her office hours to demand answers to questions relating to their litigation. She alleges that the Respondent has disrupted her practice, and she has had to cancel patients and leave the home on several occasions. She claims that the conflict between the parties has continued to escalate since their separation, and that he has been confrontational and intimidating.

14The Applicant contends that the Applicant and Respondent each contribute about 50% of the expenses of the matrimonial home.

15The Applicant contends that she must have a quiet, peaceful and professional environment for her patients, and that the Respondent’s behaviour undermines the development of her practice. She cannot, at this stage, afford to move her practice to a commercial location.

16If given exclusive possession of the matrimonial home, the Applicant is prepared to pay for the mortgage, utilities, property taxes and other on-going expenses pending finalization of the family law proceedings.

17The Applicant alleges that the Respondent’s condominium is rented on a month-to-month basis and could be available to the Respondent on 60 days’ notice.

Respondent’s Position

18The Respondent contends that the $145,000 given to the Applicant in October 2014 came from his parents, who paid for the matrimonial home, and that he is entitled to at least 50% interest in the home on the basis of a constructive trust.

19The Respondent denies any incidents of violence, aggression, or intimidation, and claims that the Applicant left the matrimonial home to be with her parents for only two weeks in September 2017. The Applicant then returned to her parents’ home on March 18, 2018 (the date of separation) and then returned to the matrimonial home in August 2018. He has provided a detailed denial of each of the incidents described by the Applicant.

20The Respondent contends that he has been fully cooperative with the Applicant, and leaves the matrimonial home whenever she is seeing patients, or works quietly in his office in the home. Notwithstanding this cooperation, the Applicant has been trying to force him out of the matrimonial home since June 2019.

21The Respondent asserts that he has never prevented or interfered with the Applicant working from the home, and that she has worked from home on a daily basis from the date of their separation. He complains that the Applicant often asks him to leave the home when she has patients and does not permit him to use the kitchen or the driveway during the day.

22The Respondent contends that since his arrival to Canada the Applicant has been “orally and mentally abusive” to him and has made “mean comments and degrading remarks” about his being an only child. The Respondent describes an incident in July 2019, in which the Applicant woke him up to discuss their family law dispute.

23Notwithstanding these incidents, the Respondent contends that, since their separation, the arguments and conflicts are reduced, and they are able to reside together in the matrimonial home.

24The Respondent claims that his condominium “is not available for me at this moment”. He has not provided the court with a copy of a lease, which tends to support the Applicant’s position that the condominium is rented on a month-to-month basis.

Legislative Framework

25Section 19(1) of the Family Law Act, R.S.O. 1990, c. F.3 provides:

19 (1) Both spouses have an equal right to possession of a matrimonial home.

26Section 24(1)(b) of the FLA provides:

24 (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

27Section 24(3) of the FLA provides:

(3) In determining whether to make an order for exclusive possession, the court shall consider,

(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.

Analysis

28Section 19 of the FLA gives both spouses an equal right to possession of the matrimonial home. The onus is therefore on the spouse seeking exclusive possession to demonstrate that continued co-habitation in the home is impractical or, where there are children of the marriage, that the well-being of a child is threatened. Continued shared use must be more than unpleasant or inconvenient. The balance of convenience – taking into account the factors set out in s. 24(3) of the FLA – must favour the party seeking exclusive possession: Gore v. Gore, 2016 ONSC 6831, at para. 6 and cases cited therein; Mignault v. Lauzon, 2018 ONSC 5442, at para. 24 and cases cited therein.

29Unpleasantness, inconvenience and even some tension are expected, perhaps inevitable, consequences of living separate and apart under one roof, but s. 24(3) does not include any of these considerations as stand-alone factors.

30In Menchella v. Menchella, 2012 ONSC 1861, McGee J. stated, at para. 15:

An order for exclusive possession is dramatic in effect, and highly prejudicial to the dispossessed spouse. An order for exclusive possession should not be made on a motion where there is conflicting evidence that requires findings of credibility that are only available at trial.

31In the present case, the Applicant contends that the Respondent’s behaviour qualifies as violence within the meaning of s. 24(3) of the FLA. The cases confirm that violence is not limited to physical abuse, but can include emotional abuse and intimidating words or conduct: Hill v. Hill (1987) 1987 CanLII 8348 (ON SC), 10 R.F.L. (3rd) 225; Menchella v. Menchella, 2012 ONSC 6304, at paras. 11 – 14.

32There is, however, conflicting evidence regarding the Respondent’s conduct. There has been no cross-examination, and the Court must therefore proceed with some caution.

33While the Court must consider pre-separation violence as well as post-separation violence, the primary focus must be on the ability of the parties to co-habit after their separation. I do not doubt that the current living arrangement is unpleasant for the Applicant, but her allegations in relation to their post-separation living arrangement do not, in my view, rise to the level of violence as that word is used in s. 24(3) of the FLA.

34The Applicant’s primary complaint and most specific allegations relate to her claim that the Respondent has made it difficult to conduct her business out of the matrimonial home. The compatibility of co-habitation with the operation of a home-based business is not a relevant factor under s. 24(3) of the FLA. Even assuming that the Respondent’s continued residence in the matrimonial home is inconsistent with the Applicant’s desire to have a quiet, peaceful and professional environment for her patients, this is not, in my view, a valid reason to give her exclusive possession of the residential portion of the matrimonial home. The Applicant’s interest in using the home as a business cannot trump the Respondent’s right to use the home as a residence.

35This analysis would necessarily be different if the Applicant were relying on s. 18(3) of the FLA, which deals with situations in which the residential portion of the matrimonial home is only part of the property. Section 18(3) provides:

18 (3) If property that includes a matrimonial home is normally used for a purpose other than residential, the matrimonial home is only the part of the property that may reasonably be regarded as necessary to the use and enjoyment of the residence.

36The Applicant is not asking to exclude the Respondent from only that portion of the property used for her business, or even to exclude the Respondent from the property during certain hours.

37Section 24(3) of the FLA also requires the Court to take into account the financial position of the parties and the availability of suitable and affordable alternative accommodation for each party.

38Based on the evidence provided on this motion, I can infer that the Respondent would have alternative accommodation if he gave his condominium tenants 60 days’ notice to vacate. On the other hand, while the Applicant has provided a doctor’s letter to explain why she cannot live with her parents, that letter leaves many questions unanswered.

39The Respondent appears to be in a better financial position than the Applicant. The Applicant’s annual income in 2018 was approximately $27,000, while the Respondent’s annual income in 2018 was approximately $74,000, although he is currently unemployed.

40While these are relevant considerations under ss. 24(3) (c) and (e), the cases do not support the proposition that a spouse should be denied equal possession of the matrimonial home simply because he or she has alternative accommodation or earns more money. As I read the cases, these factors are taken into account when deciding which spouse should be removed from the home if there has been violence, if removal is necessary in the best interests of a child, or if there has been a violation of or resistance to an existing court order relating to the sale or use of the property (see for example Kokaliaris v Palantzas, 2016 ONSC 198 at paras. 47 – 48).

Conclusion

41The Applicant’s motion for interim exclusive possession is therefore dismissed.

42The Respondent is presumptively entitled to costs for this motion under Rule 24 of the Family Law Rules. If the parties are unable to agree on costs, the Respondent may serve and file costs submissions of no more than 2 pages, plus costs outline and any offers to settle, within 20 days of the release of these Reasons, and the Applicant may file responding submissions on the same terms within 10 days thereafter.