Court File and Parties
COURT FILE NO.: FS-20-016 DATE: 2020-05-29 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: DESIREE WILLIAMS, Applicant – and – MATTHEW WILLIAMS, Respondent
Counsel: Brooklyn Thorpe, for the Applicant Stephania Sikora, Counsel for the Respondent
HEARD: May 25, 2020
GAREAU J.
Reasons on Motion
[1] The court heard motions for interim relief pertaining to custody, access and exclusive possession of the matrimonial home. The motions brought by the applicant for interim child support and a restraining order were withdrawn by the applicant at the commencement of the motion being heard.
[2] The parties began living together in 2012, were married on November 5, 2016, and separated on April 14, 2020. The parties have not resided together since that date and do not intend on resuming cohabitation.
[3] As a result of their relationship, the parties are the biological parents of Kiera Autumn Williams born August 14, 2014. Since the date of separation, Kiera has been in the care of her mother.
[4] At the time of separation, the parties and Kiera resided at a home located at 11655 Hwy. 552, Port Loring, Ontario. This home was purchased in January 2018 and is in the joint names of Desiree Williams and Matthew Williams. The parties are ad idem that the home has an approximate value of $64,000 and is unencumbered. Both parties seek exclusive possession of the matrimonial home. Presently, the respondent resides in the matrimonial home.
Custody and Access
[5] The applicant seeks an order for interim custody. The respondent seeks an order for joint custody and requests that Kiera be in his care for three days each week. The applicant takes the position that the respondent’s time with Kiera should be restricted and should be supervised.
[6] The basis of the mother’s position is her suggestion that the respondent has significant mental health difficulties and that unsupervised access would not be in Kiera’s best interest until a full psychiatric evaluation is completed on the respondent and a report received.
[7] The evidence before me supports that the respondent has had some mental health challenges. He should be taking his anti-depressant medication. There are definite problems when he is not taking his medication. This became apparent in February and March 2020 when the respondent became physically ill with pneumonia and stopped taking his anti-depressant medication. This led to what can best be described as bizarre behaviour by the respondent which eventually led to the separation of the parties. This is acknowledged in paragraph 4 of the respondent’s affidavit, sworn on May 19, 2020 in which he states, “I was unhappy in the marriage prior to that date, although my behaviour as a result of what I refer to as a ‘snap’ was the catalyst for ending our relationship.”
[8] Even the respondent’s mother was concerned about the behaviour of the respondent. In the affidavit of Dianne Marshall, sworn on May 19, 2020, she states in paragraph 7 that she saw her son in early April and that “he was in a highly agitated state, but he was coherent.” Ms. Marshall goes on in paragraph 8 of her affidavit to acknowledge that “I would agree that Matthew’s mental state was not right. I don’t think he was on his anti-depressants at that time.”
[9] The concerns about the respondent’s mental health in February and March 2020 as expressed by the applicant to the respondent’s treating physician, Dr. Mitchell, led to the respondent having a forced psychiatric evaluation under the Mental Health Act. This was completed on April 23 and 24, 2020 at the North Bay Regional Health Centre. Attached as Exhibit D to the affidavit of Matthew Williams, sworn on May 19, 2020, is a discharge summary from the North Bay Regional Health Centre. The entry under the heading “Treatment/Course in Hospital/Medications” reads as follows:
The patient was admitted to the AIPU PICU. There was no aggression or other behavioural issues noted. There was no evidence of responding to hallucinations. The patient was grandiose and dismissive but not manic. He remained calm and slept well. There were no complications.
As noted in the report, no changes were made to the respondent’s medications and the discharge plan for the respondent was limited in scope to following up with his family physician when needed.
[10] As indicated in the affidavit material, Barb Sproule, who is a nurse practitioner at the Argyle NPLC, is prepared to monitor the respondent’s progress and complete monthly assessments of his state of health and mental wellbeing.
[11] The respondent takes the position that at the present time he is taking his anti-depressant medication and his mental health has stabilized to the point where it is no longer a concern. This view is supported by the respondent’s mother, Dianne Mitchell, and the respondent’s friend, Christopher Ballard. In paragraph 11 of her affidavit sworn on May 19, 2020, Dianne Mitchell deposes that on May 7 to 9, 2020, she was back in Port Loring and stayed at her son’s home. Ms. Mitchell states that on that visit, “I observed his mannerisms and headspace. He seemed completely normal. He was no longer agitated, and conversation flowed easily.”
[12] The evidence before this court indicates that when the respondent is on his medications, he is capable of caring for Kiera and meeting her needs. This is as much as acknowledged by the applicant mother wherein paragraph 13 of her affidavit sworn on May 22, 2020, she states:
In response to paragraph 29 and 57-60, I do not dispute that Matt was previously a loving father to Kiera during our relationship. The issue is presently his mental health. Without release of his psychiatric evaluation which shows a full assessment of his mental state, I do not believe Kiera is safe in his care unsupervised. He has been highly problematic and erratic.
[13] In his affidavit sworn on May 13, 2020, at paragraph 5, Christopher Ballard describes the respondent to be “a protective and attentive father to Kiera”.
[14] As to where Kiera should primarily reside, I am of the view that the evidence strongly suggests that Kiera’s best interest requires her to continue to reside with the applicant mother. There is nothing in the affidavit material to suggest that the applicant cannot adequately care for Kiera or meet her needs. The respondent’s affidavit material does nothing to call into question the parenting ability of the applicant or her ability to meet Kiera’s needs. The applicant has not had the spectre of mental health difficulties hanging over her head as has the respondent and the applicant is able to offer Kiera the stability she requires in her life at this time.
[15] As to what parenting time the respondent should have if supervised access is to be ordered, the respondent has offered up his friend Christopher Ballard as a supervisor. The applicant rejects this suggestion on the basis that Mr. Ballard does not know Kiera, although Mr. Ballard’s affidavit sworn on May 13, 2020 would call that assertion into question. As it presently stands, there is no supervisor on which the parties can agree. As a result, if supervised access were ordered it would restrict the respondent’s contact with his daughter to the telephone.
[16] I am of the view that such restricted contact is not required on the evidence before this court and is not in the best interest of Kiera. I am not persuaded that Kiera is unsafe or is in danger of harm in having unsupervised access at this time. The evidence of Dianne Marshall and Christopher Ballard indicate that the respondent’s situation has stabilized. The discharge summary form from the North Bay Regional Health Centre provides a psychiatric assessment of the respondent which satisfies this court that so long as the respondent is taking his medications, Kiera should enjoy unsupervised visits with her father. Their relationship will not be allowed to grow and flourish under the unduly restricted visitation regime suggested by the mother. Although I am not persuaded that the respondent’s difficulties experienced in the spring of this year were a “snap”, as he describes it, or a mere blip as he would have the court believe. I am also not persuaded that he has not made significant strides that require his access to Kiera to be supervised, as the applicant suggests.
[17] As to what the custodial arrangements should look like, the evidence before this court clearly indicates an animus between the parties. They would be unable to co-parent Kiera on a joint custody regime. I am sensitive to the submissions made by counsel for the respondent that one party cannot poison the relationship and then argue an inability to co-parent. The emails and texts exchanged between the parties clearly indicates that both parties have acted inappropriately in the past and that this animus that has been created does not lie at the feet of one of the parties.
[18] The principles set out in Kaplanis v. Kaplanis, 10 R.F.L. (6) 373 is still good law in Ontario. In Kaplanis, the Ontario Court of Appeal held that there must be some evidence before the court that, despite other differences, the parents are able to communicate effectively with one another to make an order for joint custody. To order joint custody without the parents’ ability to communicate and co-parent, was held in Kaplanis to be an error in principle.
[19] Recently, in Berman v. Berman, 2017 ONCA 905, the Ontario Court of Appeal reaffirmed the principles in Kaplanis regarding joint custody.
[20] An order for joint custody is unworkable at this time, on the evidence before the court. Accordingly, the applicant mother is awarded interim sole custody of Kiera Autumn Williams, born August 14, 2014. On an interim basis, the respondent father shall have parenting time unsupervised with Kiera each Wednesday and Saturday, from 9:00 a.m. to 7:00 p.m. each day on the condition that he is taking all medications prescribed by a physician, and, in particular, his anti-depressant medication. This will commence on Wednesday, June 3, 2020 and shall continue to September 2020 until Kiera starts school at which time this access arrangement will be reviewable. It is anticipated that by that time it may be appropriate to consider expanding the respondent’s contact with Kiera to include overnight access. In addition to the access ordered above, Kiera shall spend Father’s Day, June 21, 2020, with the respondent from 9:00 a.m. to 7:00 p.m.
Exclusive Possession of the Matrimonial Home
[21] Both parties wish interim exclusive possession of the matrimonial home located at 11655 Hwy. 552, Port Loring, Ontario. The applicant takes the position that she requires the home for herself and Kiera and that it is in the best interest of Kiera that she be in the home that is familiar to her. Kiera will be starting school in September 2020 and the home is within five minutes from the school that she will be attending. The respondent takes the position that he requires continued occupation of the matrimonial home to operate his business, Premiere Furnace and Air, which is an HVAC business. The respondent has operated that business out of the garage at the home and from within the home over the past two years. As he deposed in his affidavit sworn on May 19, 2020, the respondent has 100 clients or thereabouts in the area and “during peak HVAC business, I could be booked solid, seven days a week”. As deposed in paragraph 18 in the affidavit of Christopher Ballard, the respondent “has the market cornered in the Argyle/Loring area”.
[22] At paragraph 20 of the affidavit of Dianne Marshall sworn on May 19, 2020, she states that the respondent’s business, Premiere Furnace and Air, operates from the matrimonial home and that “his tools, materials and other items related to the business are in the garage of the home or in the truck that Desiree currently has possession of”. I should make note of the fact that I was advised by counsel for the parties during the hearing of this matter that the truck has since been returned to the respondent by the applicant. Ms. Marshall goes on to state at paragraph 21 of her affidavit that the respondent “needs to remain in the matrimonial home and continue to operate his business from that address”.
[23] Currently, because of COVID-19, the respondent’s business is not operational, although he remains in the matrimonial home. The applicant deposes that at a time after separation she and Kiera were in the matrimonial home but at the insistence of the Ontario Provincial Police she left the matrimonial home with the expectation that she would be returning to it after the respondent was removed by the Ontario Provincial Police. This removal never occurred and at the present time the applicant is renting a cabin at Barn Lake Camp, where she and Kiera are residing.
[24] Section 24(1) and (2) of the Family Law Act, R.S.O. 1990, c. 7.3 grants the court the authority to grant one spouse exclusive possession of the matrimonial home, either on an interim or final basis. Section 24(3) sets out the criteria that the court shall consider in determining whether to make an order for exclusive possession. That section reads as follows:
In determining whether to make an order for exclusive possession, the court shall consider, (a) the best interest of the children affected; (b) any existing orders under Part 1 (Family Property) and any existing support orders or other enforceable support obligations; (c) the financial position of both parties; (d) any written agreement between the parties; (e) the availability of other suitable and affordable accommodations; and (f) any violence committed by a spouse against the other spouse or the children.
[25] As set out in Section 24(4), in determining the best interest of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodations; and (b) the child’s views and preferences, if they can reasonably be ascertained.
[26] Counsel for the parties provided me with various cases to support their client’s position. The jurisprudence on the issue of exclusive possession are fact driven. I found the analysis in Menchella v. Menchella, 2012 ONSC 1861 compelling and helpful. In that decision, Madam Justice Heather McGee sets out the principles to be applied in the following paragraphs:
[13] Both spouses have an equal right to possession of a matrimonial home upon marriage breakdown: s. 19(1) of the Family Law Act, R.S.O. c.7.3, s. 19(1). The court may, on motion, make a temporary order under section 24(1) regardless of the ownership of a matrimonial home and despite a spouse’s right of possession, the court may direct that one spouse be given exclusive possession of the matrimonial home.
[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.
[16] The legislature clearly intended spouses and their children to be able to maintain the shelter and consistency afforded by a matrimonial home while the issues arising from a marriage breakdown are determined. Section 24(4) speaks directly to maintaining a stable residence for children whose parents have separated. The statutory exceptions to continued possession of a home arises primarily in circumstances in which continued joint occupation is a potential or real threat to the safety or wellbeing of a child of a spouse.
[17] The best interests of a child are paramount in determining an order for exclusive possession: Bortolotto v. Bortolotto, [2002] O.J. No. 2068 (Ont. SCJ). Mother’s counsel places before me the usual line of cases in which a primary care parent has been granted exclusive possession. These cases have in common findings that: (a) there is conflict in the home that is adversely affecting the child (b) the stress in the home has become unbearable and leaving the home would be disruptive to the children; (c) it is not in the children’s best interest for the parents to continue living under the same roof; and (d) an order for exclusive possession is otherwise justified. (Rafail v. Naguib, [2012] O.J. No. 528 (Ont. SCJ); Bright v. Leslie-Bright, [2007] O.J. No. 4408 (Ont. SCJ); Brotherton v. Brotherton, 2006 Carswell Ont. 4281 (Ont. SCJ))
[27] Considering the criteria set out in section 24(3) of the Family Law Act, the principles set out in the jurisprudence provided to me by counsel, and, in particular, the principles set out in Menchella v. Menchella, and the observations made by Justice McGee in that case, I am of the view that the applicant mother should be granted interim exclusive possession of the matrimonial home to permit her to reside there with Kiera. It is important for Kiera to return to the home that is familiar to her and that she has resided in for the past two years. This is required to stabilize the situation for Kiera and to give her as much normalcy as possible in this difficult time in her life. Although I am sensitive to the respondent’s desire to retain the matrimonial home to operate his business, a business venture does not take priority over what is in the best interest of a child. Kiera will be living primarily with her mother. It is in the best interest of Kiera that she return to live in her home.
[28] I am not satisfied that it is not possible for the respondent to operate his business away from the matrimonial home. It may be inconvenient for the respondent to do so, but the nature of his business is not such that it cannot be operated elsewhere. His equipment can be stored in a facility outside of the garage of the home and he can operate his business from another location. The respondent does not operate a business that requires it to be operated from the matrimonial home. He is not engaged in such a business, such as a child day care business, which requires the confines of a home for the continued operation of his business. Although alternate accommodation may not be readily available to the respondent, the income disparity between the parties indicates that he is in a better financial position to obtain alternate accommodation than the applicant is. The level of discord that currently exists between the parties and the application of the factors set out in section 24(3) of the Family Law Act leads this court to the conclusion that Kiera and the applicant should return to the matrimonial home and that the respondent should be excluded from the matrimonial home.
[29] I am sensitive to the fact that the respondent will have to secure new accommodations for himself and his business and may require time to do so. Given this understanding, the respondent will be permitted some time to secure new accommodations. The applicant shall be granted interim exclusive possession of the matrimonial home and contents, excluding the respondent’s tools, equipment and items he requires for the operation of his business, effective on July 15, 2020 at 1:00 p.m. This will allow the respondent some time to obtain new accommodations at the same time not unduly prejudicing the applicant who is presently at Barn Lake Camp with Kiera.
[30] It is directed that the custody, access and exclusive possession order made by this court as set out in these reasons shall be enforced by the Ontario Provincial Police and such other police authorities having jurisdiction in Port Loring, Ontario.
Costs
[31] The positions taken by the parties were not unreasonable on the evidence before the court. Success has been divided in that the applicant has succeeded in her claims for custody and exclusive possession, and the respondent has succeeded in obtaining an order for unsupervised access to his daughter Kiera. Given the divided success, each party shall bear their own costs of the motion before the court.