SUPERIOR COURT OF JUSTICE – ONTARIO
COURT FILE NO.: FS-20-76-00 DATE: 2020 07 31
RE: M.C.H. Martinez Applicant AND: A. S. Tsinoglou and T. Tsinoglou Respondents
BEFORE: Bloom, J.
COUNSEL: M. Salama, counsel for the Applicant T. Gill, agent for the Respondent, A. S. Tsinoglou E. Aiaseh, counsel for the Respondent, T. Tsinoglou
HEARD: July 24, 2020
E N D O R S E M E N T
I. INTRODUCTION
[1] The Applicant and the Respondent, A. S. Tsinoglou, have brought cross-motions before me.
[2] The cross-motions as framed in oral argument raise the following issues: (1) interim child support sought by the Applicant from A. S. Tsinoglou for Christian Tsinoglou, born November 10, 2018, Santiago Doria born February 11, 2004, and Alejandra Doria born August 9, 2009; (2) interim spousal support sought by the Applicant from A. S. Tsinoglou; (3) an order for interim exclusive possession of the matrimonial home sought by the Applicant as against both Respondents, and an order for interim maintenance of it sought only as against A. S. Tsinoglou; (4) interim access to Christian Tsinoglou sought by A.S. Tsinoglou; (5) return of certain belongings sought by A. S. Tsinoglou; and (6) an order for involvement of the Office of the Children’s Lawyer sought by A. S. Tsinoglou. In addition, I must determine whether I should permit the parties to move for the relief they seek before a case conference is held.
II. EVIDENCE
[3] The parties rely principally upon affidavit evidence, including the affidavit of the Applicant dated July 7, 2020, her reply affidavit dated July 22, 2020, the affidavit of A. S. Tsinoglou dated July 19, 2020, the affidavit of Evangelos Tsinoglou dated July 19, 2020, the affidavit of Ann Larkin dated July 19, 2020, and the affidavit of T. Tsinoglou dated July 22, 2020.
III. FACTS
[4] The Applicant came originally from Columbia where she had been married and had two children, Santiago and Alejandra. She married the Respondent, A. S. Tsinoglou, in Canada on November 3, 2018. She gave birth to Christian on November 10, 2018.
[5] She and the three children arrived in Canada on December 5, 2019 to take up residence with the Respondent, A. S. Tsinoglou, at 1599 Hallstone Rd., in Brampton, Ontario. The Applicant and the children have resided there, since their arrival in Canada. While living at Hallstone with the Applicant and the three children, A. S. Tsinoglou provided the food for Santiago and Alejandra as well as their home.
[6] The Applicant received a letter from A. S. Tsinoglou’s counsel on June 22, 2020 informing her that she must vacate the Hallstone home before June 25, 2020, because her husband had been renting the property and the lease was to be terminated.
[7] The Applicant is not working, and is destitute. Santiago and Alejandra attend school in the neighbourhood of their Hallstone residence and have school friends.
[8] Christian has medical issues, including asthma.
[9] The Applicant has lupus and reduced immunity.
[10] A. S. Tsinoglou has two children from a prior marriage, Lukas and Evangeline. According to paragraph 15 of the affidavit of A. S. Tsinoglou dated July 19, 2020, he has had access to them at the Hallstone home.
[11] The Applicant and A. S. Tsinoglou separated on April 15, 2020.
[12] Both the Respondent, A. S. Tsinoglou, and his father, the Respondent, T. Tsinoglou, in affidavit evidence state that the rental of the Hallstone property was under a tenancy in which the son was the lessee, and the father was the owner-lessor.
[13] A. S. Tsinoglou now lives with his father and his father’s wife at their condominium. Lukas and Evangeline live with their mother, Ann Larkin.
[14] The 2019 income of A. S. Tsinoglou was $92, 602.
IV. ANALYSIS
A. Whether the Relief Sought by the Parties Should be Addressed before a Case Conference
[15] FLR 14(4.2) provides:
URGENCY, HARDSHIP ETC.
(4.2) Subrule (4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice. O. Reg. 202/01, s. 4 (1); O. Reg. 89/04, s. 6 (4).
[16] In my view having regard to the fact that the Applicant is not working and is destitute, the relief she seeks should be addressed on the merits on the basis of both hardship and urgency prior to a case conference.
[17] In the interest of justice I also will hear the motions by the Respondents for the relief they seek, save for an order for the involvement of the Office of the Children’s Lawyer. It would be unfair during the pandemic to force the Respondents to await a case conference, particularly since the evidence I have heard on the issues raised by the Applicant includes the evidence necessary to address those raised by the Respondents. The only exception is the issue of an order for the involvement of the Office of the Children’s Lawyer; that matter should be addressed at a case conference before a motion is heard respecting it.
B. Interim Order for Child Support
[18] The Respondent argues that both Santiago and Alejandra are not a “child of the marriage” within s. 2(2) (b) of the Divorce Act.
[19] In Chartier v. Chartier, [1999]1S.C.R. 242 at paras. 39 and 40 Justice Bastarache for the Court set out relevant principles:
39 Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. The Divorce Act makes no mention of formal expressions of intent. The focus on voluntariness and intention in Carignan was dependent on the common law approach discussed earlier. It was wrong. The court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage. The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child's relationship with the absent biological parent. The manifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. Once it is shown that the child is to be considered, in fact, a "child of the marriage", the obligations of the step-parent towards him or her are the same as those relative to a child born of the marriage with regard to the application of the Divorce Act. The step-parent, at this point, does not only incur obligations. He or she also acquires certain rights, such as the right to apply eventually for custody or access under s. 16(1) of the Divorce Act.
40 Nevertheless, not every adult-child relationship will be determined to be one where the adult stands in the place of a parent. Every case must be determined on its own facts and it must be established from the evidence that the adult acted so as to stand in the place of a parent to the child.
[20] I am satisfied that there is sufficient evidence before me to establish that Santiago and Alejandra are children of the marriage for purposes of an interim order for child support. They came with their mother to form a new family in Canada with the Respondent, A. S. Tsinoglou, who put a roof over their heads and fed them as a father would.
[21] At trial on a full evidentiary record this issue can be re-visited.
[22] Further, based on there being three children and the 2019 income of the Respondent, A. S. Tsinoglou of $92,602, I order interim child support of $1804 monthly payable by him on the 15th of each month commencing August 15, 2020. A Support Deduction Order will issue; the parties are to arrange the provision of the Information Form and Support Deduction Order to the Registrar’s office which is to have the order signed, issued, and entered by the appropriate officials in that office.
C. Interim Order for Spousal Support
[23] In addition, the Applicant is destitute and does not work. I award her interim spousal support of $343 per month payable by A. S. Tsinoglou on the 15th of each month commencing August 15, 2020. The payments are also to be subject of the Support Deduction Order and Information Form about which I have already provided directions.
D. Interim Order for Exclusive Possession of the Matrimonial Home
[24] The relevant provisions of the Family Law Act are:
Matrimonial home
18 (1) Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home. R.S.O. 1990, c. F.3, s. 18 (1).
Alienation of matrimonial home
21 (1) No spouse shall dispose of or encumber an interest in a matrimonial home unless,
(a) the other spouse joins in the instrument or consents to the transaction;
(b) the other spouse has released all rights under this Part by a separation agreement;
(c) a court order has authorized the transaction or has released the property from the application of this Part; or
(d) the property is not designated by both spouses as a matrimonial home and a designation of another property as a matrimonial home, made by both spouses, is registered and not cancelled. R.S.O. 1990, c. F.3, s. 21 (1).
Setting aside transaction
(2) If a spouse disposes of or encumbers an interest in a matrimonial home in contravention of subsection (1), the transaction may be set aside on an application under section 23, unless the person holding the interest or encumbrance at the time of the application acquired it for value, in good faith and without notice, at the time of acquiring it or making an agreement to acquire it, that the property was a matrimonial home. R.S.O. 1990, c. F.3, s. 21 (2).
Powers of court respecting alienation
23 The court may, on the application of a spouse or person having an interest in property, by order,
(a) determine whether or not the property is a matrimonial home and, if so, its extent;
(b) authorize the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required,
(i) cannot be found or is not available,
(ii) is not capable of giving or withholding consent, or
(iii) is unreasonably withholding consent,
subject to any conditions, including provision of other comparable accommodation or payment in place of it, that the court considers appropriate;
(c) dispense with a notice required to be given under section 22;
(d) direct the setting aside of a transaction disposing of or encumbering an interest in the matrimonial home contrary to subsection 21 (1) and the revesting of the interest or any part of it on the conditions that the court considers appropriate; and
(e) cancel a designation made under section 20 if the property is not a matrimonial home. R.S.O. 1990, c. F.3, s. 23.
Order for possession of matrimonial home
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,
(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;
(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;
(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;
(d) direct that the contents of the matrimonial home, or any part of them,
(i) remain in the home for the use of the spouse given possession, or
(ii) be removed from the home for the use of a spouse or child;
(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;
(f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered; and
(g) where a false statement is made under subsection 21 (3), direct,
(i) the person who made the false statement, or
(ii) a person who knew at the time he or she acquired an interest in the property that the statement was false and afterwards conveyed the interest,
to substitute other real property for the matrimonial home, or direct the person to set aside money or security to stand in place of it, subject to any conditions that the court considers appropriate. R.S.O. 1990, c. F.3, s. 24 (1).
Temporary or interim order
(2) The court may, on motion, make a temporary or interim order under clause (1) (a), (b), (c), (d) or (e). R.S.O. 1990, c. F.3, s. 24 (2).
Order for exclusive possession: criteria
(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. R.S.O. 1990, c. F.3, s. 24 (3); 2014, c. 7, Sched. 9, s. 4.
Best interests of child
(4) In determining the best interests of a child, the court shall consider,
(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. R.S.O. 1990, c. F.3, s. 24 (4).
[25] Pursuant to FLA s. 24(1)(b) and (2), I make an interim order for exclusive possession of the Hallstone property in favour of the Applicant and as against both Respondents.
[26] Assuming that the lease between the two Respondents was valid as they contend, the leasehold interest of A. S. Tsinoglou was an “interest” within s. 18(1) of the FLA.
[27] In Manufacturers Life Insurance Co. v. Riviera FarmHoldings Ltd., 39 O.R. (3d) 609 (Ont.C.A.) Justice Rosenberg for the Court stated:
The appellant's entitlement to relief in this case must start with a determination of whether the property formerly owned by Riviera was a matrimonial home. In this case, that depends solely on whether either she or her husband had "an interest" in the property. The house sitting on the property otherwise meets the definition since it was "ordinarily occupied by the person and his or her spouse as their family residence" within the meaning of s. 18(1).
There is no doubt that the house, although owned by Riviera, was a matrimonial home since the appellant's husband had "an interest" in it. Riviera leased the property including the house to Mr. Di Paola's sole proprietorship. A sole proprietorship has no personality separate from its owner. In law, it is as if Mr. Di Paola had leased the property himself from Riviera. There is nothing to indicate that the legislature intended to exclude leasehold interests from the operation of s. 18(1). Accordingly, the house on the property owned by Riviera was a matrimonial home as was that part of the property reasonably necessary for the use and enjoyment of the residence (s. 18(3)).
[28] Those statements apply to the case at bar. The leasehold interest of A. S. Tsinoglou was an “interest” within s. 18(1).
[29] As to the purported termination of the lease in the case at bar and whether that transaction affects the rights of the Applicant to seek an interim order for exclusive possession of the matrimonial home, I note that at trial that issue will have to be determined on a full evidentiary record allowing the application of FLA sections 21 and 23. For the purposes of the Applicant’s motion for an interim order for exclusive possession of the Hallstone property, I am satisfied that the leasehold interest is sufficiently proven to exist to allow me to make that order.
[30] I make the interim order for exclusive possession of the matrimonial home having regard to the best interests of all of the children affected, including Santiago, Alejandra, Christian, Lukas, and Evangeline, and the financial position of both spouses. I am mindful that Lukas and Evangeline will not be able to visit their father at the Hallstone property, and that the Respondent, A. S. Tsinoglou, offers an alternative premises to the Applicant, Santiago, and Alejandra. However, the move from Hallstone would be more disruptive for those two children than the order I am making for exclusive possession is for Lukas and Evangelline. Hallstone is the only home Santiago and Alejandra have known since coming to Canada; Lukas and Evangeline only stayed there part time.
[31] I also make an interim order under FLA s. 24(1)(e) and (2) as against the Respondent, A. S. Tsinoglou, for payment of all repair and maintenance of the matrimonial home at Hallstone, and of the following liabilities in respect of it: rent, utilities, telephone, cable, and internet.
[32] Under s. 24(1)(d) of the act I order that A. S. Tsinoglou be permitted to attend at Hallstone to retrieve his personal belongings and the possessions of Lukas and Evangeline; he is to do so in the company of a police officer at a time agreed to by counsel for himself and the Applicant.
E. Interim Order for Access for A. S. Tsinoglou to Christian Tsinoglou
[33] I am of the view that it is in the best interests of Christian that his father have access to him. There is no reason that the principle favouring maximum contact with parents should not be applied in this case.
[34] Accordingly, I make an interim order that the father is to have access as follows: (1) every other weekend from Friday at 10:00 am to Sunday at 6:00 pm; (2) the exchange of the child shall take place at the Hallstone property; the mother of the Respondent, A. S. Tsinoglou, who is Christiana Tsinoglou, is to be driven to the premises by him and she is to take and drop off the child; (3) the access is to commence Friday, August 7, 2020; (4) A. S. Tsinoglou shall observe all applicable governmental protocols in respect of Covid-19 respecting himself and in his care of Christian.
F. Case Conference
[35] The parties are to arrange a Case Conference with the Trial Office. It is to be arranged in accordance with the Central West Notice to the Profession effective July 6, 2020 and is to take place as soon as possible.
V. COSTS
[36] I shall receive costs submissions in writing. They are to be a maximum of 3 pages, excluding a bill of costs. All parties shall serve and file those submissions within 14 days of release of this endorsement by a single e-mail addressed to my assistant, Sara Stafford, at Sara.Stafford@ontario.ca and the other two parties. There shall be no reply.
Bloom, J. DATE: July 31, 2020