Court File and Parties
Date: 20200420 Superior Court of Justice - Ontario
Re: Eirini Flesias And: Paul Flesias and Basile Flesias
Before: J.T. Akbarali J.
Counsel: Helen Miller, for the Moving Party/Intended Applicant Kenneth Snider, for the Responding Party/Intended Respondent Paul Flesias Richard Hammond, for the Responding Party/Intended Respondent Basile Flesias
Heard: April 17, 2020
Endorsement
Overview
1The moving party, Eirini Flesias, claims the need for urgent relief on this motion. She has not yet commenced an application, but she undertakes to do so as soon as possible.
2The moving party is married to the responding party, Paul Flesias. The other responding party, Basile Flesias, is Paul Flesias’s father and is the legal owner of the parties’ matrimonial home. As all the parties share the same last name, I will refer to each of them in these reasons by their first names for clarity.
3On this motion, Eirini seeks an order that the parties’ youngest child, J, reside primarily with her, or alternatively, an order for a parenting schedule. She seeks conduct orders related to parenting. She also seeks exclusive possession of the parties’ matrimonial home, which is legally owned by Basile. She seeks a certificate of pending litigation with respect to the property. She seeks an order for the return of her government documentation.
Background
4Below, I set out only some of the background facts. Other facts relevant to the analysis of the issues raised on this motion are addressed in the discussion of each issue in these reasons.
5Eirini is 46 years old. She is originally from Russia. She met Paul, who is now 48 years old, in Greece. She came to Canada, where Paul is from, on a tourist visa in January 1999. She and Paul were married one week later. They separated in early 2020, after 21 years of marriage. Although they lived in Canada during their marriage, Eirini’s English language skills are limited. Eirini deposes that Paul prevented her from learning English.
6Eirini and Paul have three children: B, who is 20 years old, E, who is 18 years old, and J, who is 13 years old. B and E are both university students.
7Eirini’s evidence is that her marriage to Paul was characterized by physical, emotional, and financial abuse, and that Paul’s family participated in the abuse. She states that the physical abuse was pervasive and long-lasting. She gives detailed accounts of certain episodes of abuse in her affidavit.
8According to Eirini, on January 26, 2020, Paul physically assaulted her and was charged criminally. His bail conditions include an order restraining him from going near the matrimonial home, or her. However, Eirini deposes that notwithstanding those bail conditions, Paul returned to the matrimonial home the next day, January 27, 2020, with Basile, who is his surety. She deposes that Basile tried to get her to agree to take Paul back, and when she refused, Basile told her he was raising the rent he was charging to reside in the matrimonial home to $2,200 from $1,250. Eirini deposes that Paul and Basile knew she could not pay this money, because Paul controls access to her finances. She deposes she was financially coerced into allowing Paul back into the house.
9Eirini deposes that subsequently, on February 9, 2020, Paul assaulted her again in the presence of E and J. She states that Paul prevented her from calling 911. She deposes that she ran out the back door of the house to a neighbour’s home for safety, wearing only a t-shirt and slippers. Her neighbour called 911. She deposes that Paul and the children left the home, and locked it. She states they went to Basile’s house, where they remain.
10Eirini states she could not return to the home because she had no keys with her. She stayed the first night with a neighbour, and subsequently was taken in by a friend, with whom she continues to stay. Eventually the children brought her some of her things, but she has not been able to regain entry to the home.
11In her affidavit, Eirini explains her efforts to return to the home. Most importantly, she deposes that on February 10, 2020, and many times thereafter, she asked B to arrange to let her back into the home, but B said he could not because Basile would not allow it. In his affidavit, Basile agrees that he told B that he did not want Eirini in the property. Eirini also deposes that she made efforts through counsel to return to the property, to no avail. I am advised there is also a proceeding ongoing through the Landlord Tenant Board, with a return date of April 23, 2020 in which Eirini is seeking to return to the property, and in which Basile denies that he had a landlord-tenant relationship with Eirini.
12After the incident on February 9, 2020, Paul was charged with a second count of assault, and also charged with breaching his bail conditions. All the charges against Paul are pending.
13Eirini deposes that Paul removed all the funds from their joint bank account, which were the only funds she had access to. Eirini states that she is relying on her friend’s charity to house and feed her. Eirini deposes that she worked for the family cleaning business, but Paul kept all of her earnings. She was allowed to spend money on the family’s needs, but she often had to account for it by producing the receipts to Paul. She states that any leftover funds had to be returned to Paul.
14Since Eirini has been out of the family home, she has not been able to regularly see the children. She fears that Paul is alienating the children from her. She states that she saw the children briefly when they came to bring her some of her things. After that, she was able to have one brief visit with J, at his school, and another brief visit at which B was also present, outside of a Walmart. She attempts to stay in contact with the children by telephone. However, she deposes that Paul has both refused to facilitate her re-entry into the matrimonial home (in which he cannot live due to his bail conditions) and refused to allow her to have parenting time with J at her friend’s home, where she is now staying. Paul states that J is uncomfortable around Eirini’s friend, does not wish to see her at the friend’s home, and does not wish to have overnight parenting time with Eirini, perhaps because she is staying at her friend’s home. In the current circumstances, with public facilities closed due to COVID-19 and the health risks of being out and about, the result is that Eirini can find no plan that satisfies Paul under which she can spend time with J.
15In Paul’s view, this is not an urgent motion. He states that, due to his criminal charges, he must be circumspect in his evidence. He does not put forward his version of events, but he makes a blanket denial that he abused Eirini. He states that Eirini left the home voluntarily, although he acknowledges she has commenced a landlord-tenant proceeding against Basile. He states that there is a tenant in the matrimonial home who formerly lived in the basement, but who now has use of the entire home.
16Basile delivered an affidavit in which he, too, declined to put forward his version of events on many issues. Rather, he makes certain specific denials of Eirini’s evidence, without offering any explanation of what occurred between the parties. He objects to the manner in which this motion for urgent relief came about, stating that he has been denied the opportunity to make “full answer and defence”. I note that an urgent motion is not a circumstance in which “full answer and defence” is possible. When faced with an urgent motion, there is, by definition, urgency. In urgent circumstances, the court does its best with the evidence before it to right the ship, with a temporary order to bring some stability to the parties’ circumstances. A full examination of the facts and the parties’ respective rights and obligations comes at a trial, after pleadings are exchanged and disclosure made, and if appropriate, questioning conducted. The fact that a party has not been able to make “full answer and defence” is no reason for the court not to deal with urgent issues that are brought before it.
17There is one way in which Basile’s evidence is particular. He disputes Eirini’s evidence about how the parties’ matrimonial homes were bought and sold, and maintained, over time. While Eirini deposes that she and Paul paid the expenses and have a financial interest in the matrimonial home, Basile states that he has always funded Paul and Eirini’s expenses. I will address this discrepancy in the context of Eirini’s request for a Certificate of Pending Litigation.
Is the motion urgent?
18Yes, the motion is urgent. Eirini’s evidence is that she is homeless but for the charity of her friend, and unable to see J, during a public health crisis. My colleague Pasaratz J. has written about the importance of children maintaining strong relationships with their parents during this time of uncertainty: Ribeiro v. Wright, 2020 ONSC 1829. Currently J, who was previously living continuously with his mother, has been relocated to his grandfather’s home and has barely seen his mother in two months.
19Moreover, the fact that Paul insists that this is not an urgent motion lends credence to Eirini’s arguments that Paul is seeking to take tactical advantage of the pandemic and her specific vulnerabilities, including her lack of financial resources and her poor English language skills. Eirini’s evidence of her dire situation is detailed and specific, and Paul has not addressed it in a meaningful way. As I have noted, Basile has also declined to put forward his version of events on many issues, choosing instead to only deny specific evidence led by Eirini. In my view, Basile and Paul’s approach to the issues on this motion suggest that they are working together in this endeavor to obtain tactical advantage over Eirini.
20I will consider the urgency of Eirini’s request for a certificate of pending litigation later in these reasons, when I turn to that issue.
Credibility Concerns
21Before I turn to consider the issues raised in this motion, I make a few general observations about the credibility of the parties’ evidence.
22First, I recognize that I am dealing with a paper record only. This motion has been brought on urgently, material has been prepared quickly, and there have been no cross-examinations or oral evidence. It is possible that, on a fuller examination of the facts, the conclusions I reach in these reasons may be assailable.
23However, the parties have made choices about how to lead their evidence for this motion. As I have noted, Eirini has led detailed, specific evidence. Paul and Basile have, for the most part, made blanket denials without providing an alternative narrative.
24Moreover, there are inconsistencies in Paul’s and Basile’s evidence, some of which I set out in greater detail in my analysis of the issues raised on this motion. By way of example, I note that while Paul and Basile maintain that Eirini left the matrimonial home voluntarily, they acknowledge that she left without her things. Paul acknowledges she has commenced a landlord and tenant proceeding against Basile. No one disputes that she left without her keys, identification, and wearing only a t-shirt and slippers, or that 911 was called shortly thereafter. Given this summary of the evidence that Paul and Basile either do not dispute or agree with in their affidavits, it is difficult to see how they maintain that Eirini left “voluntarily”, unless “voluntarily” is taken to mean deliberately, to avoid harm.
25I thus conclude that, for the purposes of this motion, Eirini’s affidavit evidence is credible, while I have serious doubts as to the credibility of Paul and Basile’s affidavit evidence. Where there is conflict between Eirini’s evidence, and that of Paul and Basile, I prefer Eirini’s evidence on all issues except the issues involving the financial arrangements relating to the matrimonial homes. Because Basile has offered specific evidence on those matters, I will evaluate the parties’ evidence on those issues separately, when I deal with the motion for leave to issue certificate of pending litigation.
Should Eirini be granted an order for exclusive possession of the matrimonial home?
26I begin with this issue because the question of Eirini’s residency impacts the question of an appropriate parenting orders for J.
27As a preliminary matter, Basile argues that Eirini is not entitled to an order for exclusive possession of the matrimonial home, because the home in question is not a matrimonial home under ss. 18 and 19 of the Family Law Act, R.S.O. 1990, c. F.3. On this urgent, interim motion, I reject this argument.
28I address Basile’s and Eirini’s arguments regarding the trust interest Eirini alleges she and Paul have in the home below, in my analysis of the motion for leave to issue a certificate of pending litigation. Here, it suffices to say that, based on the record, which includes evidence of their occupation of the home, their payment of expenses of the home, or rent, and evidence of contribution to the acquisition of the home, Eirini, or Paul, or both of them, have an interest in the home, whether that be beneficial, possessory, or otherwise. At this early stage, for the purposes of this urgent, interim motion only, I conclude that the property is a matrimonial home under the Family Law Act.
29The court has jurisdiction to grant an order for exclusive possession of the matrimonial home under s. 24 of the Family Law Act. Subsection 24(3) sets out the criteria the court should consider in making an order for exclusive possession of the matrimonial home, as follows:
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.
30With respect to these criteria, I note the following:
a. Eirini’s residence has become a central roadblock in the parties’ discussions about J having time with his mother. Paul has insisted J cannot visit Eirini at her friend’s home, where she is staying. In this time of COVID-19, there are no safe community spaces where Eirini can parent J. As will become clear in my reasons on the parenting part of this motion, there is no reason why Eirini cannot or should not be an involved parent in J.’s life. Indeed, Paul does not assert that Eirini is not a capable, loving parent. Accordingly, if, as Paul states, J is uncomfortable being around Eirini’s friend, the only safe place for Eirini to parent J is at the matrimonial home. Thus, an order allowing Eirini to re-enter the matrimonial home and granting her exclusive possession of it is consistent with J’s best interests in that it will provide a safe place for J and Eirini to spend time together. b. There are no existing support or property orders to consider. c. Eirini’s evidence is that Paul controlled her finances, and that he has now shut off her access to funds and cleaned out their joint bank account. Paul disputes that he controlled her finances, but he does not depose that she has access to any funds now. He deposes that she “had” access to a credit card, not that she currently has any such access. Accordingly, there is no evidence before me that would allow me to infer that Eirini is able to afford alternative accommodation, or pay first and last month’s rent, or a security deposit, assuming she could even find a suitable place to rent during a pandemic. d. There is no written agreement between the parties. e. Paul cannot live in the home, in view of his bail conditions. f. There is no evidence that there is other, available and affordable accommodation for Eirini. g. Eirini’s evidence about Paul’s violence towards her is specific and detailed. In response, Paul has denied those allegations without providing particulars, ostensibly on the basis of his criminal charges. However relevant his evidence about the incidents in question are to his criminal charges, they are also relevant to this motion. Paul was, of course, free to decide not to provide evidence about what happened between him and Eirini, but choices have consequences. For the purposes of this motion, I accept Eirini’s evidence that Paul has been violent towards her. h. Eirini also gave evidence about Paul’s violence towards the children. Paul denies having been violent towards any of the children. He relies on affidavits from B and E in which they deny having experienced violence in the home, whether directed at them, their siblings, or their mother. I have grave concerns about the evidence from B and E. I address these concerns in greater detail later in these reasons. At this point, it suffices to say that Paul relies on his own blanket denials of Eirini’s evidence of violence, and affidavits from two financially dependent, young adult children who have nowhere else to live at the moment but with him and Basile, given Eirini’s unstable housing situation. In these circumstances, I do not rely on B and E’s evidence about Paul’s violence at all.
31I note that Paul and Basile have each deposed that Basile has rented the entire matrimonial home to the former basement tenant. I do not accept this evidence. It is unsupported. There is no evidence from the tenant. There is no lease with the tenant that indicates a change in premises occupied. There are no banking records to demonstrate that the basement tenant’s rent has gone up. There is no correspondence with the tenant that confirms a change in the tenancy terms. I also note that the relationship with the tenant appears to be more than just a business arrangement, because the tenant went with the children to give Eirini some of her things, although the reason why is not clear. There is no explanation as to what has happened to the family’s other possessions that would have been in the house now that the basement tenant is supposed to be occupying the entire home. In my view, the alleged rental of the entire home to the basement tenant is part of an ongoing scheme in which Paul and Basile are participating with the intent to place Eirini in a terrible predicament for Paul’s and Basile’s tactical advantage in the litigation.
32Accordingly, I conclude that Eirini is entitled to a temporary, without prejudice order for exclusive possession of the matrimonial home, to take effect immediately and continue until further order of the court or written agreement between the parties.
33Basile asked that, were I to make the order for exclusive possession of the home, that I do so on terms that would require Eirini to pay the home’s expenses. Eirini’s ability to fund the expenses of the home relate to her income, which she deposes comes from a family cleaning business that is a sub-contractor of Basile’s cleaning company. On her evidence, she has no income independent of Paul and Basile. Basile’s evidence is that Paul and Eirini did no real work, but he simply funded them through his cleaning company. The motion before me did not include a claim for support, and no financial statements were filed. Thus, the ongoing financial arrangements between the parties are very much in flux. I encourage the parties to work together to resolve the question of the expenses of the home, and support. If the issues cannot be resolved, the parties can take the steps they consider appropriate to have the issues conferenced or determined, subject to the practice direction governing the court’s operations currently in force.
Parenting Orders
34Eirini seeks an order that J shall have his primary residence with her, or alternatively, for a parenting schedule. She also seeks an order that neither party shall speak negatively about the other to J, or about the court proceedings to J, E, or B, or within their earshot, or will allow anyone else in their household, including the older children, to speak negatively about the other or about the court proceeding to J, E, or B, or within their earshot.
35Section 16(2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that a court may make an interim order respecting the custody of, or the access to, a child of the marriage. By s. 16(8), in doing so, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the conditions, means, needs and other circumstances of the child.
36Section 16(6) allows the court to impose such other terms, conditions or restrictions in an order for custody or access as it thinks fit and just.
37Section 16(10) codifies the maximum contact principle, requiring the court to give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.
38Although not the operative section, s. 24(2) of the Children’s Law Reform Act provides guidance to the court in determining a child’s best interest:
The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application
39In considering the parenting arrangement that is in J’s best interest, I note the following:
a. Until recently, J lived with both his parents. There is no suggestion in any of the materials that J has not had a close and loving relationship with Eirini. b. Eirini raises concerns about Paul’s violence towards J., however while she expresses concerns for J’s safety while in Paul’s care, she does not seek an order preventing Paul from parenting J. c. The CAS became involved with the family after the domestic violence charges were laid against Paul. A letter from the CAS in the record confirms the CAS has no concerns with J spending time with Eirini. It does not address or raise any concerns about J spending time with Paul. d. It is apparent that J regularly spends time with E and B. It is unclear to me how much time J spent with Basile before the parties separated, but he has been living with Basile since that time. e. Paul deposes that J does not wish to see Eirini at her friend’s home, or overnight, possibly because Eirini has been staying with her friend. I have made an order granting Eirini exclusive possession of the matrimonial home, so I do not consider J’s discomfort with Eirini’s friend, if he is indeed uncomfortable with her, to be a barrier to Eirini having parenting time with J. f. To the extent Paul, B or E depose that J does not want to spend overnight parenting time with Eirini for other reasons than his alleged discomfort with Eirini’s friend, I do not rely on that evidence. J is still young, and his relationship with Eirini must be supported. As my colleague Pasaratz J. wrote in Ribeiro v. Wright, 2020 ONSC 1829, at para. 10, especially in the midst of the public health crisis in which we find ourselves, children need to remain connected to their parents: “In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever”. g. Moreover, I am concerned that Paul may be taking steps to try to alienate the children from Eirini. For that reason, it is important that J spend meaningful time with Eirini, away from the influence of Paul. h. I am concerned about Paul’s ability to act as a parent to J. His positions taken to date show disrespect for Eirini’s role as J’s mother. Assuming Paul’s objection to Eirini’s parenting time with J was legitimately related to J’s alleged discomfort with Eirini’s friend, and the lack of safe, other, space where Eirini could parent J, his position on Eirini’s exclusion from the matrimonial home demonstrates a lack of understanding of J’s need to have a meaningful relationship with Eirini in this time of great uncertainty, when J’s parents have recently separated, he has relocated to his grandfather’s home, and everything else about his life has changed, including his school being closed and all the other changes that come along with the need to adhere to public health guidelines around physical distancing in the current crisis. i. I am also concerned that Paul has considered it appropriate to file affidavits from E and B on this motion, which indicate that they have been provided with and read Eirini’s affidavit. Although E and B are technically adults, they are still young adults, financially dependent on him, and living with him. It is not at all desirable that they should be placed in the middle of the dispute between their parents. That Paul has chosen to involve them suggests he does not understand that the dispute between the parents should stay between the parents for the sake of the children – even the adult children. I have grave concerns about Paul’s ability to appreciate and respond to the needs of his children to be protected from the parties’ conflict. j. Moreover, by involving E and B in the litigation, Paul is lending credence to Eirini’s argument that he is seeking to alienate the children from her. Rather than supporting all the children in their relationship with Eirini, as he claims to be doing, he has shown he is taking active steps to discourage their relationship with Eirini.
40Having regard to these factors, I am of the view that the following temporary parenting order is in J’s best interest:
a. J shall live primarily with Eirini, and have the following specified parenting time with Paul: i. In week one, J shall be in Paul’s care from Thursday at 5 p.m. to Sunday at 5 p.m. ii. In week two, J shall be in Paul’s care from Wednesday at 5 p.m. to Friday at 5 p.m.
41Week one shall commence today, April 20, 2020. For this week one only, J shall be in Eirini’s care commencing Tuesday April 21, 2020 at 8 a.m. until Thursday at 5 p.m, when Paul’s parenting time shall begin, and ongoing parenting time shall thereafter follow the schedule above.
42If B or E is willing, the exchanges between the parents shall be facilitated by one of J’s siblings. If the siblings are not willing, then the exchanges shall be facilitated by Eirini’s friend, Debbie Karagiannis, who will limit her participation in Eirini’s parenting time with J to facilitating access exchanges only.
43This schedule will go some way towards undoing the damage that has been done to J’s relationship with Eirini, while still allowing J meaningful contact with Paul, his grandfather, and his siblings, should the siblings choose to continue to reside with Paul and Basile rather than return to the matrimonial home with Eirini, on either a full-time or part-time basis.
44In addition, I agree that the conduct orders that Eirini seeks are appropriate in view of the parties’ circumstances, and my serious concerns about Paul’s behaviour.
Return of Eirini’s Documents
45Eirini seeks the return of her government documents. Neither Paul nor Basile led any evidence specifically denying that they had possession of her documentation. There is no reason for them to have possession of any of Eirini’s government documentation.
46To the extent Paul or Basile have these in their possession or control, they shall forthwith return Eirini’s documents to her, including but not limited to her birth certificate, her high school diploma, her college diploma, her Russian passport, her Greek passport, her Greek identity documents, and all of her immigration documents.
Should a certificate of pending litigation be issued?
47A court may issue a certificate of pending litigation under s. 103 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and Rule 42 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
48The test to discharge a certificate of pending litigation under s. 103(6) is the same test as to whether to issue a certificate of pending litigation: Perruzza v. Spatone, 2010 ONSC 841 at para. 20. Section 103(6) provides:
The court may make an order discharging a certificate,
(a) where the party at whose instance it was issued, (i) claims a sum of money in place of or as an alternative to the interest in the land claimed, (ii) does not have a reasonable claim to the interest in the land claimed, or (iii) does not prosecute the proceeding with reasonable diligence; (b) where the interests of the party at whose instance it was issued can be adequately protected by another form of security; or (c) on any other ground that is considered just,
and the court may, in making the order, impose such terms as to the giving of security or otherwise as the court considers just.
49Rule 42 provides:
ISSUING OF CERTIFICATE
Court Order Required
42.01 (1) A certificate of pending litigation (Form 42A) under section 103 of the Courts of Justice Act may be issued by a registrar only under an order of the court.
Claim for Certificate to be in Originating Process
(2) A party who seeks a certificate of pending litigation shall include a claim for it in the originating process or pleading that commences the proceeding, together with a description of the land in question sufficient for registration.
50In this case, there is no proceeding yet constituted. It is impossible to assess whether the test under s 103(6) is met in this case without being able to review Eirini’s application to properly evaluate the interest in land which she intends to claim. Eirini advises that she intends to advance a trust claim against the property. She intends to argue that she and Paul are the beneficial owners of the property.
51Basile raises issues about the merits of Eirini’s trust claim, including, among other things, her bankruptcy in around 2011-2012. He argues that in her bankruptcy, Eirini did not claim a beneficial interest in the parties’ matrimonial home, and thus she cannot have such an an interest now. He argues that, based on the affidavit evidence, I can decide that Eirini has no valid trust claim. In response, Eirini argues that she has been under the control, financial and otherwise, of Paul, and has poor English skills. There may be an issue to be tried as to what she understood about her and Paul’s bankruptcies.
52I am not in a position, without a pleading, disclosure or the opportunity to fully examine the facts, to conclude that there is no merit to Eirini’s trust claim. No one has sought such relief on this motion in any event, and it would not be appropriate relief for an emergency motion.
53Basile also argues that there is no urgency to Eirini’s motion for leave to issue a certificate of pending litigation. Because I am concerned that Paul, with the aid of Basile, is seeking to take tactical advantage of the current situation, I conclude that it is urgent to consider whether it is necessary to safeguard Eirini’s interests pending a full hearing of the issues.
54I agree with Basile that I cannot grant leave to issue a certificate of pending litigation until litigation has been commenced. I am thus of the view that the motion for leave to issue a certificate of pending litigation must be adjourned until after the issuance of Eirini’s application.
55In the interim, however, due to my grave concerns about Paul’s and Basile’s conduct, which I have already explained, I consider it just to issue a no dealing order with respect to the property, to protect Eirini’s potential interest until such time as the motion for leave to issue a certificate of pending litigation can be heard.
56Accordingly, I order that Paul and Basile shall take no steps to sell, transfer, mortgage, encumber, or dilute their interest in or equity in the property (whatever it may be) until such time as the motion for leave to issue a certificate of pending litigation may be heard, until written agreement between the parties, or until further order of the court.
57The motion for the certificate of pending litigation may be returned after the issuance of Eirini’s application if necessary. If the parties contemplate the return of the motion during such time as court operations continue to be partially shut down, they shall have to identify the urgency of hearing the motion during the partial shut down in accordance with the practice directions applicable at the time. If the motion is found not to be urgent, it may be returned on the re-opening of full court operations. The motion shall be returned before me, if I am available.
Costs
58Modern family costs rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10. The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, 2018 ONCA 840, at para. 12.
59Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, pursuant to s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. By r. 24(10)(a) of the Family Law Rules, the court is directed to make a decision on the costs of a step in the case promptly after dealing with the step, in a summary manner.
60Pursuant to r. 24 of the Family Law Rules, the successful party is presumptively entitled to costs, subject to the factors set out in r. 24: Beaver, at para. 10. The factors to consider in setting the amount of costs are listed in r. 24(12). The court must consider the reasonableness and proportionality of a number of factors as they relate to the importance and complexity of the issues. These factors include each party’s behaviour, the time spent by each party, any written offers to settle, including those that do not meet the requirements of r. 18, any legal fees and any other expenses, and any other relevant matter.
61There is no general approach in family law of “close to full recovery costs”: Beaver, at para. 11. Rather, full recovery is only warranted in certain circumstances, such as bad faith under r. 24(8), or beating an offer to settle under r. 18(14): Beaver, para. 13.
62Eirini is the successful party on this motion. She is presumptively entitled to her costs.
63In my view, Eirini is entitled to substantial indemnity costs, to mark the court’s disapproval of Paul and Basile’s conduct which I have found to be abhorrent and in furtherance of seeking tactical advantage by exploiting Eirini’s vulnerabilities, including her lack of facility with English, her lack of funds, her lack of housing, and the current pandemic.
64Eirini’s full indemnity costs, according to her bill of costs totals $7,707.45 all inclusive. She advises that 30-40% of these costs related to the issues around the matrimonial home, while 60-70% related to the parenting issues. She did not have a proposal as to how costs ought to be allocated between Paul and Basile.
65In my view, Eirini’s full indemnity costs are reasonable, having regard to the issues involved, the material prepared, and the time spent on argument. Counsel’s hourly rate is also a reasonable full indemnity rate.
66Although I specifically directed any party who would seek their costs to deliver a bill of costs by the day before the motion was heard, neither Paul nor Basile provided a bill of costs. Both argued that costs should be reserved, which is not consistent with the provisions of the Family Law Rules.
67In my view, substantial indemnity costs in the amount of $6,000 is fair and reasonable for this motion. The question is how those costs should be allocated between the respondents.
68In my view, Paul should be solely responsible for the costs related to the parenting issues, which I find to be $4,000. Paul and Basile shall be jointly and severally responsible for the costs related to the property issues of $2,000. Costs shall be paid to Eirini within 30 days.
Summary
69In summary, I make the following orders:
a. On a temporary, without prejudice basis, I order that Eirini Flesias shall have exclusive possession of the matrimonial home, known municipally as 1 Stonehenge Crescent, Toronto, Ontario, M1G 2P5, commencing immediately on the release of these reasons to continue until further order of the court or written agreement between the parties. For clarity, the exclusive possession order does not extend to the basement of the home, which is occupied by a tenant. b. On a temporary, without prejudice basis, J shall live primarily with Eirini Flesias, and have the following specified parenting time with Paul Flesias: i. In week one, J shall be in Paul’s care from Thursday at 5 p.m. to Sunday at 5 p.m. ii. In week two, J shall be in Paul’s care from Wednesday at 5 p.m. to Friday at 5 p.m. c. Week one shall commence on April 20, 2020. For the first week one only, J shall be in Eirini’s care commencing Tuesday April 21, 2020 at 8 a.m. until Thursday at 5 p.m, when Paul’s parenting time shall begin, and ongoing parenting time shall thereafter follow the schedule above. d. If B or E is willing, the exchanges between the parents shall be facilitated by one of J’s siblings. If the siblings are not willing to facilitate exchanges, then the exchanges shall be facilitated by Eirini’s friend, Debbie Karagiannis, who will limit her participation in Eirini’s parenting time with J to facilitating access exchanges only. e. On a temporary, without prejudice basis, neither party shall speak negatively about the other to J, or about the court proceedings to J, E, or B, or within their earshot, or will allow anyone else in their household, including the older children, to speak negatively about the other or about the court proceeding to J, E, or B, or within their earshot. f. To the extent Paul Flesias or Basile Flesias have in their possession or control Eirini Flesias’s documents, including but not limited to her birth certificate, her high school diploma, her college diploma, her Russian passport, her Greek passport, her Greek identity documents, all of her immigration documents, they shall return these to her forthwith. g. On a temporary, without prejudice basis, Paul and Basile shall take no steps to sell, transfer, mortgage, encumber, or dilute their interest in or equity in the property known municipally as 1 Stonehenge Crescent, Toronto, Ontario, M1G 2P5, until such time as the motion for leave to issue a certificate of pending litigation may be heard, until written agreement between the parties, or until further order of the court. h. The motion for the certificate of pending litigation may be returned after the issuance of Eirini’s application if necessary. If the parties contemplate the return of the motion during such time as court operations continue to be partially shut down, they shall have to identify the urgency of hearing the motion during the partial shut down in accordance with the practice directions applicable at the time. If the motion is found not to be urgent, it may be returned on the re-opening of full court operations. The motion shall be returned before Akbarali J, if available. i. Paul shall pay Eirini her costs of this motion with respect to the parenting issues in the amount of $4,000 all inclusive within thirty days. Paul and Basile shall be jointly and severally liable to pay Eirini her costs of this motion with respect to the property issues in the amount of $2,000 all inclusive within thirty days. j. This endorsement is an order of the court, enforceable by law from the moment it is released.
J.T. Akbarali J.
Date: April 20, 2020