Court File and Parties

Court File No.: 384/19 Date: 2020-07-10 Superior Court of Justice – Ontario

Re: Justin Thomas Cavanagh, Applicant And: Brianne Renee Cavanagh, Respondent

Before: Mr Justice Ramsay

Counsel: Fay Ann Guilbeault for the Applicant; Virginia L. Workman for the Respondent; Claude Leduc for the Children’s Lawyer

Heard: June 10, 2020

Endorsement

[1] The parties separated in August 2019 when the Applicant left the jointly-owned matrimonial home in St Catharines and moved to Niagara Falls. They have three children, aged 12, 10 and 7. Both parties ask for a temporary order to settle the children’s residence pending trial. The Applicant asks for partition and sale of the matrimonial home.

Residence

[2] On November 7, 2019 the parties agreed to a temporary residence arrangement in which the children lived with the Respondent mother and visited the Applicant father from Friday to Sunday in one week and Wednesday to Friday in the other.

[3] The father did not return the children to their mother after Father’s Day. He took them to the cottage for a week and returned them the following Saturday, over the mother’s objection. The mother then brought her present motion and the father responded with his.

[4] The mother submits that the status quo represented by the agreement should remain in place for the time being. She says that the children would rather reside with the mother and visit the father, and that the agreed status quo should not be altered until the Children’s Lawyer can confirm their wishes.

[5] The status quo is reasonable, and it was agreed by the parties. At least two of the children are old enough for their views to be given significant weight. I agree that the Children’s Lawyer should be given the opportunity to finish his work. An order will go as to residence asked by the Respondent.

[6] The Respondent has expressed willingness to negotiate another week’s holiday for the children with each parent over the summer. I would encourage the parties to agree on that.

Partition and sale

[7] The Respondent is not opposed to sale of the matrimonial home, but to the timing, “and the listing for sale during COVID 19, and prior to all financial issues being resolved so that she is aware of the amount of support she will be receiving.”

[8] I think that both parties and the children would be better served by selling the house and splitting the proceeds. The Applicant is not asking that the money be held in trust pending completion of the litigation.

[9] I cannot very well delay the sale for the duration of COVID-19. There is no certainty as to what circumstances will prevail and for how long, and how it will affect the market. What the parties lose if it is a buyer’s market they will make up when they buy their new accommodation. As equal co-owners they will be affected equally in any event.

[10] There has been no malicious, vexatious or oppressive conduct and sale of the matrimonial home would not prejudice the Respondent’s property rights under the Family Law Act. An order will go as asked by the Applicant.

[11] Given the mixed success there will be no order as to costs.

“Justice J.A. Ramsay” J.A. Ramsay J. Date: 2020-07-10