Court File and Parties

COURT FILE NO.: FS-20-20125 DATE: 20201218 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Elena Reshetnikova Applicant – and – Wayne Rawlins and Joan Singh Co- Respondents

Counsel: Alexandra Abramian and Brigitta Tseitlin, for the Applicant Simone Moses, agent for the Respondent, Wayne Rawlins Rick Toor, agent for the respondent, Joan Singh

HEARD: December 17, 2020

Reasons for Decision

M. Kraft, J.

1On November 18, 2020, the applicant, Elena Reshetnikova (“the wife”). brought a motion, without notice to the respondents, Wayne Rawlins (“the husband”) and Joan Singh (“the husband’s mother”), for temporary exclusive possession of the matrimonial home, located at 261 Prescott Avenue, Toronto, ON M6N 3G9P, title to which is registered in the husband’s sole name. The wife named the husband and the husband’s mother as co-respondents in her Application.

2On November 19, 2020, Akbarali, J. granted the wife exclusive possession of the matrimonial home on a without prejudice temporary, temporary basis, to commence immediately. In addition, the order of Akbarali J. authorized the Metropolitan Toronto Police to enforce the order for exclusive possession; ordered the wife to serve both the husband and husband’s mother with her Application, Form 35.1, financial statement, motion materials and the endorsement immediately; and ordered the motion to be returned before the Court on November 26, 2020. In accordance with the order of Akbarali, J., the wife served the husband and his mother with her materials and Endorsement. The police had to assist the wife to give effect to the order since the husband’s mother was residing in the matrimonial home with the wife and children, along with the husband’s brother. The husband had previously been removed from the matrimonial home as a result of criminal charges.

3On November 26, 2020, at the return of the ex parte motion, the husband’s mother had served and filed a responding affidavit, sworn on November 25, 2019 and the husband was in the process of retaining Simone Moses as counsel, who sought an adjournment. Hood, J. understood that the husband’s mother wished to bring a cross-motion and, accordingly, he ordered that both parties’ motions be returned before the Court on December 17, 2020, and set out a timetable for the parties to exchange motion material.

4This is the first return of the ex parte exclusive possession motion, following the filing of material from the wife, the husband and the husband’s mother. [1] The following relief is being sought by the parties:

a. The wife asks that the temporary temporary exclusive possession order continue.

b. The husband’s mother seeks an order vacating the exclusive possession order of Akbarali, J., dated November 19, 2020 as it affects her; an order that she be permitted to return to the matrimonial home; and an order that neither she nor the wife harass, molest, or otherwise disturb the peaceful enjoyment of each other while they reside in the matrimonial home.

c. The husband, as the registered owner of the property, is not opposed to his mother returning to the matrimonial home. He acknowledges that his mother has resided in the matrimonial home since it was purchased in the 1990s, and that she has an interest in the matrimonial home. The husband does not take a position as to the extent of that interest.

Summary of Positions and Issue before the Court

5The husband is the registered owner of the matrimonial home. On March 30, 2020, he was removed from the home as a result of a criminal charge and the terms of his Recognizance prevent him from having any direct or indirect contact with the wife. The wife has the same rights of possession of the matrimonial home as the husband has by virtue of s.19 of the Family Law Act. The wife’s position on the motion is that after the husband was removed from the matrimonial home, the husband’s mother created an environment that made it toxic and untenable for her and the children to continue to reside with her in the matrimonial home. The husband’s mother seeks possessory rights to the matrimonial home.

6In this motion, the husband’s mother is effectively taking the position that the wife is not entitled to an order for exclusive possession of the matrimonial home because the effect of that order is to deprive the husband’s mother of her alleged right to possession of the house.

Background Facts

7The parties were married on July 2, 2018. They separated on March 30, 2020. They have one child of the marriage, Sofia Rawlins (“Sofia”), born March 29, 2019. Sofia is 21 months old.

8Elena was born in Ufa, Russia. She was previously married and divorced. Elena has a child from another relationship named Ailita Reshetnikova (“Ailita”), born August 2, 2010. Ailita is 10 years old.

9The husband was born in Toronto. He was previously married and divorced. He does not have any children from his first marriage.

10The parties met in February 2018 and began dating. Shortly thereafter, the wife moved into the matrimonial home with the husband and his mother. Title to the matrimonial home is registered in husband’s name alone.

11The parties were married on July 2, 2018, in Toronto, Ontario. The husband commenced a sponsorship application for the wife and her daughter, Ailita, to obtain permanent residence status in Canada. Sofia was born on March 29, 2019.

12When Sofia was three months old, the wife returned to Ufa, Russia and stayed there until her and Ailita’s permanent residency status was granted so they could return to Canada.

13The wife speaks English but her first language is Russian. She does not have family in Canada, other than the husband and children. Ailita has been in Canada for a year.

Events Leading to the Separation

14In January 2020, the wife, Sofia and Ailita returned to Canada. Shortly after returning to Canada, the parties began to experience marital difficulties. The wife deposes that the husband began to pressure her to leave the matrimonial home with Ailita and to leave him and Sofia in the matrimonial home. According to the wife, the husband also began to pressure her “to sign documents to transfer title to the matrimonial home to his mother.” [2] The wife refused to sign documentation to consent to the husband transferring title to the matrimonial home to his mother, despite continual pressure from him in the months of January, February and March 2020.

15According to the wife, in March 2020, the husband insisted that they attend together at his real estate lawyer, Howard Weisberg’s office so she could sign the documentation to consent to his transfer of title to the matrimonial home to his mother. The wife deposes that after Mr. Weisberg explained the documents to her in English, she asked for an opportunity to seek legal advice and she and the husband left his office. The husband agrees that the parties attended at Mr. Weisberg’s office, the wife refused to sign the documentation he wanted her to sign and, as a result, they left Mr. Weisberg’s office.

16The wife deposes that the husband was so enraged when they left Mr. Weisberg’s office that he began to drive recklessly and erratically while she and the children were in the car. The wife deposes that she began to cry and begged the husband to stop driving and “the husband said he would drop [her] off at the police station so that they could help [her] get her stuff and get out of his house.” [3] Apparently, when they arrived at the police station it was closed due to the Covid-19 health crisis. The husband does not disagree that an incident took place in the car when he and the wife left his lawyer’s office. However, the husband deposes that

“As the applicant and I drove home with the children, we were having a conversation. I was distracted and realized that I was going to miss our exit so I sped up to change lane (sic) and avoid missing the exit. My driving was not erratic, nor was there any intent to threaten or intimidate the applicant. As a result of my speeding up, the applicant told me that she was afraid. I did not know what to do and I did not want to be accused of hurting her and so I drove to a police station. As a result of Covid-19 the police station was closed so I called the police station and explained the situation to them. Ultimately, they were unable to do anything to assist and so the Applicant and I went home”

17The wife deposes that when they returned to the matrimonial home from the police station, the husband continued to threaten her that if she did not consent to him transferring title to the matrimonial home to his mother saying “one of [us] will die and the other one will go to prison”. The wife asserts that she was very scared, being fairly new to Canada, without family or friends and little ability to speak the English language. She deposes that she felt trapped by the husband’s volatility and trapped in the matrimonial home. As a result, the wife began to consider returning to Russia with both children.

18According to the wife, when the husband learned that she wanted to return to Russia with the children he told her she could not leave the country without first signing the transfer documentation for the matrimonial home. The husband took the wife’s personal identification documents away from her and according to the wife, told her he would not return her documents unless and until she signed the transfer documentation for the matrimonial home. In the husband’s affidavit, he husband admits that he took the wife’s personal identification documentation but he deposes that he was concerned that the wife would take Sofia to Russia and since they were both Russian citizens, he was “certain that [he] would have no way of being in Sofia’s life” if the wife decided not to return to Canada.

19Both parties confirm that the wife called the police and on March 30, 2020, the husband was charged with extortion. The husband was released on a Recognizance, the terms of which include that he cannot have any direct or indirect communication with the wife. The husband was also removed from the matrimonial home.

20The wife has no knowledge where the husband has been living since March 30, 2020. Neither the husband nor his mother have disclosed that information.

21After the husband was arrested, the wife and two children, along with the husband’s mother, continued to live in the matrimonial home together. Prior to the parties’ separation on March 30, 2020, the husband’s mother resided in the upstairs of the matrimonial home, as did the husband, wife and children. After the husband was charged with extortion on March 30, 2020, the living arrangements in the matrimonial home continued.

Events that Precipitated the Wife’s Ex Parte Exclusive Possession Motion

22The wife and children resided in the matrimonial home with the husband’s mother until she created an environment which was so toxic and unhealthy that it became untenable. The wife deposes in her affidavit, sworn on November 18, 2020, that after the husband’s arrest, the police had been called to the matrimonial home at least six times due to conflict between her and the husband’s mother. As set out in the Endorsement of Akbarali J., dated November 19, 2020, according to the wife, the husband’s mother behaved in ways that made it impossible for the wife and children to remain living with her once the husband was removed from the matrimonial home because:

a. She took the position that the matrimonial home does not belong to the wife, that neither the wife nor the children have the right to reside there or to use any of the furniture or appliances in the home;

b. She disconnected the electricity in the basement where the washing machine and dryer were located and told the wife to do laundry outside;

c. She attempted to forbid the wife from using the fridge or stove;

d. When she saw the wife and children using the patio furniture in the summer, she ripped off the cushions so it could not be used;

e. She removed the kitchen chairs from the kitchen table and told the wife and children they were not allowed to use them and made them stack the chairs on the table like a pyramid;

f. She threw a kettle at the wife;

g. She yelled and screamed at the wife in front of the children for her failure to discipline the children; when Sofia had a toileting accident; when Ailita took some food that belonged to the husband’s mother; and when the children went into the kitchen without permission; and

h. She called the police because the children had drawn with crayons on the kitchen walls.

23In particular, the husband’s mother’s sworn evidence for explanation of her conduct alleged by the wife includes the following:

a. All she wants was for her possessions in the home to be respected and taken care of;

b. Since the wife returned from Russian in January 2020, she had to get her chairs reupholstered and add plastic covers to the seats as the children had damaged the previous furniture;

c. She offered to allow the wife to use the washer/dryer and the other appliances in the home without issue;

d. She will install whatever appliances are necessary for the wife to comfortably live in the basement;

e. She never forbid the wife from using the fridge and stove but she has asked her, on multiple occasions, to keep both the fridge and stove clean;

f. Her son, Michael Singh, did not live in the basement on a fulltime basis but he is at her home daily and currently renovating the basement again, after renovating it just over 2 years ago, due to a flood that occurred in the house in the spring of 2020; and

g. The children’s unease is not caused by her but rather from their lack of schedule and discipline.

24The wife deposes that the impact of the husband’s mother’s treatment on her and the children has been terrible. In particular, the wife describes that Ailita has exhibited anxiety; stopped eating; and is scared of the husband’s mother. Furthermore, the wife deposes that Sofia is unsettled at night and feels the wife’s and Ailita’s fear, tension and anxiety. The wife deposes that it is only since Akbarali, J. made the exclusive possession order on November 19, 2020, and the police removed the husband’s mother and brother from the matrimonial home, that Ailita has started to calm down.

25It is noteworthy that in November 2020, the husband’s brother, Michael Singh, moved into the basement of the matrimonial home, notwithstanding that he owns his own residence at 342 Harvie Avenue, Toronto, ON, after the arrest of the husband. Michael Singh swore an affidavit, dated December 4, 2020, confirming that beginning in November 2020 he moved into the basement of the matrimonial home. He deposes that there are repairs needed to make the basement habitable and he has offered to do the repairs to the home within three days if the wife moves to the basement with the children.

26Notably, Michael Singh does not deny that he owns the property on 342 Harvie Avenue. He gives no explanation why he moved into the basement of the matrimonial home in November 2020 when he had available, alternative accommodation. The husband’s mother deposes that Michael Singh did not move into his house on 342 Harvie Avenue because it was damaged from a fire in 2013, and remains uninhabitable as a result of the fire.

27While the tension in the matrimonial home between the wife, children and husband’s mother was building from March 2020 to November 2020, the wife also made several discoveries of transactions that had taken place in relation to properties owned by the husband, of which she was totally unaware, as follows:

a. On April 6, 2020, days after the husband’s arrest, the wife learned that the husband transferred his 50% interest in a property known as 1916 Dufferin Street, Toronto, ON M6E 3P7 (“the Dufferin St. property”), to his mother for no consideration. The husband’s sister lives in the Dufferin St. property. Title to the Dufferin St. property was in the joint names of the husband and his mother. The husband admits that he transferred his 50% share in the Dufferin St. property to his mother in his affidavit. He deposes that that this transfer had been arranged between him and his mother for some time; that although his name was on title to the property he has no claim to the property; that his name was on title to the property for the sole purpose of allowing his sister and mother to obtain financing for same; that he paid no money for the down payment of the home, nor did her contribute toward the mortgage or upkeep of the husband.

b. The wife learned from a title search that immediately following the husband’s transfer of his 50% share in the Dufferin St. property to his mother, that the husband’s mother obtained a private mortgage in the sum of $450,000 against the Dufferin St. Property; on July 6, 2020, his mother obtained a second private mortgage in the sum of $234,000 and on November 10, 2020, his mother obtained a third mortgage registered on title in the sum of $20,000. The husband’s mother’s affidavit material provides no explanation for these transactions. In the wife’s Application the only relief she seeks against the husband’s mother is for her to provide an accounting and tracing of the monies in the total sum of $704,000 she obtained by way of three separate private mortgages registered against the Dufferin St. property following the parties’ separation; and

c. In June 2020, the wife discovered that the husband had refinanced the matrimonial home without her knowledge or consent and obtained a mortgage in favour of Scotiabank in the amount of $397,000.

28The husband’s mother’s sworn evidence as to why the husband transferred his 50% interest in the Dufferin St. property to her is as follows:

a. “Wayne did not own any part” of the Dufferin St. property;

b. her daughter is the beneficial owner of the property;

c. her daughter has owned the property for over 25 years; and

d. she “asked Wayne that we remove his name off the property at 1916 Dufferin Street, because there were issues arising with him regarding [her] home at 261 Prescott Avenue, and [she] wanted to ensure that [her] daughter’s home was left untouched”.

29In other words, the husband’s mother was not happy that the wife would not consent to the husband transferring title to the matrimonial home to her and she wanted to be sure that the Dufferin St. property was protected. The difference between the two properties is that the husband did not need the wife’s consent to transfer his interest in the Dufferin St. property to his mother, because it was not a matrimonial home.

30In response to the wife’s recitation of the history respecting his demands that the wife consent to the transfer by him of title to the matrimonial home from his name to that of his mother, the husband deposes as follows:

a. In January 2020, he wife had returned from Russia with Sofia and had come back with Sofia and Ailita to Canada;

b. Upon the wife’s return to Canada, there was tension in the home between him and the wife and his mother;

c. His mother was frustrated with the fact that the wife showed somewhat of a lack of consideration for her and did not discipline the children, which resulted in some damage to the home and her belongings.

d. His mother mentioned to him in passing that she had some frustrations with the wife and knowing his mother, he felt that the tension in the household could increase because the wife was not taking these concerns seriously;

e. To escape the tension and keep the situation from becoming uncomfortable, he thought it would be best if the wife, Ailita, Sofia and him left the home and found their own residence and he explained this to the wife;

f. His mother agreed to buy out his interest in the property for fair market value and he would be removed from title of the home;

g. He and the wife discussed moving out of the matrimonial home and finding their own place to live and he thought the wife was agreeable to this. It was on this understanding that he arranged for him and the wife to attend at a real estate lawyer’s office to finalize the buy out. However, once they were at the lawyer’s office, the wife refused to sign the papers. The real estate lawyer explained the agreement to the wife; however, she still would not sign;

h. Following their attendance at the real estate lawyer’s office and the wife’s refusal to sign the agreement, he was frustrated, however, he did not threaten the wife. He did not threaten to send the wife and Ailita back to Russia; and

i. After further discussions with the wife, she once again agreed to sign the documents to finalize the buy out of the matrimonial home. However, once they attended at the real estate lawyer’s office, he insisted that the wife receive independent legal advice.

Analysis

31The matrimonial home in respect of which temporary exclusive possession has been granted to the wife is registered in the husband’s sole name. The husband’s mother is taking the position that she has a 100% beneficial interest in it. The husband denies this position but does acknowledge that his mother has some interest in the home.

32At the time Akbarali, J. made the order, she was aware that the husband’s mother and the husband’s brother, who had recently been released from prison, Michael Singh, were residing in the home with the wife and children. She was also aware that the husband’s mother owned the Dufferin St. property.

33It is via the evidence that has been served and filed since the ex parte order was made that it is clear that the husband’s mother asserts that she is the sole beneficial owner of the matrimonial home, notwithstanding the registration of title to it. Thus, it seems to me, that the immediate issue is whether by reason of the husband’s mother’s position that she has an interest in the matrimonial home it follows that she has possessory rights to the matrimonial home so she can return there to reside there with the wife and children.

34Given her alleged right to reside at the matrimonial home by virtue of her alleged ownership interest in it, according to the husband’s mother, the exclusive possession order ought not to have been made and should be set aside and vacated. The husband’s mother deposes that she is prepared to co-exist with the wife in the matrimonial home provided the wife and children move into the basement and they both agree not to harass each other. The wife asserts that the basement of the matrimonial home is uninhabitable; there are renovations needed to it; there is no shower in the basement bathroom and no kitchen. As a result, the wife and two children would need to co-exist with the husband’s mother and share the main floor of the house to access a proper washroom and kitchen. During oral submissions when asked by the court why the husband’s mother could not reside in the basement, her counsel advised that his client is a caterer and she needs access to her large kitchen equipment in the kitchen upstairs.

35I note that the attendance before the husband’s lawyer took place in March 2020. The husband does not deny that at the time he was seeking the wife’s consent to the transfer of title to the matrimonial home to his mother, he also was planning to transfer his 50% registered interest in the Dufferin St. property to his mother. He does not deny that the wife was unaware of his intention to do so. It is clear from the evidence, however, that the husband’s mother was involved in these arrangements. Essentially, the transactions would have resulted in the husband having title to neither the matrimonial home nor the Dufferin St. property and the husband’s mother having title to both properties even though both the husband’s mother and husband assert that it is the husband’s sister who owned (and has owned) the Dufferin St. property since it was purchased and, not the husband, nor his mother.

36The buy-out agreement of the matrimonial home between the husband and his mother was that he would transfer his 100% interest in the matrimonial home to his mother and she would buy out his interest for $350,000. All that is known for certain is that the wife, who has an infant with the husband and a 10-year old daughter, was being pressured by the husband in January, February and March 2020 to consent to the husband’s transfer of title in the matrimonial home to his mother. The wife would not agree. The wife continued to be pressured by the husband because she would not consent to the buy-out transaction. While he denies it, there is some evidence that the husband was upset and appears to confirm the wife’s evidence, at least to the extent, that he was extremely upset and frustrated with her on the day they went to his lawyer’s office.

37The husband’s explanation of what happened when the parties drove home from his real estate lawyer’s office and ended up the police station makes little sense. There was no reason for the husband to drive to a police station because the wife told him she was scared of how he was driving. It makes far more sense that the husband was angry that the wife would not agree to consent to him transferring title of the matrimonial home to his mother as he had hoped and that he drove to a police station quite possibly, as a way of intimidating the wife.

38I note that the husband did not serve and file a financial statement in response to this motion. As a result, the impact on the wife of the husband’s insistence that she consent to the transfer of title to the matrimonial home to his mother cannot be assessed by the court on this motion.

39What is of great concern on this motion is that the husband and his mother’s evidence is contradictory on key issues. The husband’s mother takes the position on this motion that she is the sole beneficial owner of the matrimonial home and has been the sole beneficial owner of the home since it was purchased approximately 25 years ago. The husband denies this. He asserts that it was he who paid the down payment of the home when it was purchased and he lived in the home (as well as his mother and her husband) except for a brief period between 1999 and 2003. Further, the husband alleges that he has continued to pay the mortgage, property insurance and taxes associated with the matrimonial home and his mother only pays for utilities.

40Notwithstanding the husband’s mother’s position that she is the sole beneficial owner of the property, the husband deposes that his mother “agreed to buy out his interest in the property for fair market value”. The husband’s mother herself, has attached real estate documents to her affidavit sworn on November 25, 2020, which confirms that she was aware that she was to pay $350,000 to her son in exchange for the transfer of title in the matrimonial home into her name; $290,000 on the registration of the transfer of title and $60,000 by September 1, 2020. Thus, it is difficult to understand her position for the purposes of this motion that she is the sole owner of the matrimonial home. Further, while the husband conceded, in very general terms, that his mother has an interest in the matrimonial home, it seems clear that he has not informed the court of what that interest is. The husband’s position is that he has no issue with his mother returning to the matrimonial home but he does not submit that she has a right of possession to the home.

41Moreover, neither the husband nor his mother has given any explanation as to why 50% of title to the Dufferin St. property was to be transferred as part of the arrangements between him and his mother, except only that the mother deposes that it was because of the wife’s refusal to consent to the transfer of title to her of the matrimonial home that she wanted to ensure that her daughter’s home was left “untouched” given the issues that arose with the husband and wife regarding the matrimonial home.

42On the husband’s evidence, the real estate changes were initiated because of the conflict between his mother and his wife and the two transactions were scheduled to occur in or around March 2020, in or around the time that he had decided it would be best, initially that he, the wife and children move out of the matrimonial home, purportedly to alleviate the tension between his mother and the wife.

43The husband’s mother’s financial affairs and the husband’s financial affairs are by no means clear. The husband’s mother says her daughter owns the Dufferin St. property but, title to that property was transferred by the husband to his mother solely and not to his siter. It appears that the husband’s family is involved in real estate transactions where title is placed in someone’s name but where the titled family member does not necessarily have a beneficial interest in the property; and where family members who reside in the various properties may have beneficial ownership of them, without being on title. It is not clear to me whether the husband transferred his 50% interest in the Dufferin St. property to his mother in an attempt to avoid having to pay the wife an equalization payment. The wife clearly did not know about the husband transferring his 50% interest in the Dufferin St. property to his mother.

44Neither the husband’s mother nor the husband has explained why the husband transferred his 50% interest in the Dufferin street property to his mother if their concern was really the protection of the sister’s interest in the property from claims the wife might have.

45I have had an opportunity to review all of the evidence that has been filed on the wife’s motion for exclusive possession. Were it not for the husband’s mother’s assertion that she is the beneficial owner of the house, I would have no difficulty making the order for exclusive possession sought by the wife.

46During oral argument, counsel for the husband’s mother argued that the wife improperly attached a videotape as an exhibit to her affidavit, sworn on December 2, 2020, of his client screaming at the wife in front of the children. Without having viewed the video, I am convinced that the husband’s mother behaved in a way that made it untenable for the wife and children to coexist with her in the matrimonial home. The husband, in his affidavit evidence, confirms that his mother was upset with the wife for having a “lack of consideration for her” and “for not disciplining her children for damaging property in the matrimonial home”. He deposes that “knowing [his] mother”, he was concerned that the tension would increase in the house. The husband’s mother, in her affidavit evidence, confirms that she had to replace furniture and add plastic covers to her seats because the children damaged them and that she wanted her possessions to be respected and taken care of by the wife. It is not surprising, based on the evidence, that over the past number of months, things between the wife and children and the husband’s mother deteriorated.

47A review of the husband’s mother’s evidence makes it clear that she does not think the wife respects her belongings in the matrimonial home or that the wife disciplines her children in a way that demonstrates the respect to which the husband’s mother believes she is entitled. The husband’s mother acknowledges that the children are “uneasy” around her but blames this unease on the wife’s lack of discipline and schedule. The husband’s mother accepts no responsibility for her behaviour in the home, for the conflict between her and the wife, or its negative affect on the children.

48Having reviewed the affidavit of the wife, husband and that of the husband’s mother’s affidavits I am not persuaded that the wife’s evidence that the circumstances that led to the separation and the manner in which the husband’s mother had been treating the wife and children was untrue or exaggerated. While each give his or her recitation of the history and even without consideration of the audio tape that the wife provided to the Court, the wife’s version of events has the ring of truth.

49Pursuant to s.19 of the Family Law Act, the wife’s right to possession of the matrimonial home is limited to the husband’s right of possession and ends when she and the husband cease to be spouses:

Possession of matrimonial home

19 (1) Both spouses have an equal right to possession of a matrimonial home. R.S.O. 1990, c. F.3, s. 19 (1).

Idem

(2) When only one of the spouses has an interest in a matrimonial home, the other spouse’s right of possession,

(a) is personal as against the first spouse; and

(b) ends when they cease to be spouses, unless a separation agreement or court order provides otherwise. R.S.O. 1990, c. F.3, s. 19 (2).

50In other words, the wife could obtain no greater right to possession than the husband had to the matrimonial home at the time the order was made. I note that in response to this motion, the husband did not take the position that he had been living in the matrimonial home with the wife at the discretion of his mother. Interestingly, he took the position that he was not opposed to his mother living in the property which is consistent with a view on his part that possibly the right to possess the matrimonial home was, in his view, his right and not his mother’s alone, or in part.

51The right to exclusive possession of a matrimonial home is a personal right of a spouse only, which ends when spouses are no longer spouses.

52The husband’s mother has no right of possession to the matrimonial home. She is not a registered owner. She is not a spouse as defined in Part II of the Family Law Act. She has been residing in the matrimonial home presumably because the husband has permitted her to do so.

53In my view, while the husband’s mother asserts that she is the beneficial owner of the matrimonial home, she has not prepared pleadings claiming an interest in the home as of yet. Even if she had pled a constructive and/or resulting trust interest in the matrimonial home, she has not, on the evidence before me, satisfied me that she has a prima facie case for a constructive trust/resulting trust interest such that she would be entitled to possessory rights to the home before a determination of whether she has such an interest in the property is proven.

54The husband’s mother has no right to possess the matrimonial home under the Family Law Act. During the course of submissions, I asked the husband’s mother’s counsel on what legal grounds does his client rely in support of her position that she had a right to remain in the matrimonial home given that she was not a registered owner of the property nor was she a spouse? Counsel for the husband’s mother advised that the grounds upon which his client was relying are as follows:

a. The case of Morrison v. Barbosa, 2017 ONSC 7271, extended the right of possession of a matrimonial home, normally afforded only to married spouses under Part II of the Family Law Act, to a common-law spouse and that by virtue of this decision the Court has jurisdiction to grant the husband’s mother possessory rights of the matrimonial home. This case is distinguishable from Morrison v. Barbosa because the only person seeking a right to possession of the home was the common-law partner and the registered owner had vacated the property two years earlier. The medical condition of Ms. Morrison and its resulting limitations on her ability to move to alternate accommodations without it creating a hardship for her if she were evicted, together with the lack of evidence of need on the owner’s part to move to Ontario, let alone occupy the property pending trial, were significant factors that the court relied upon in deciding to order “exclusive possession” of the property pending further order;

b. Similarly, in Joyce v. O’Neil, a common law spouse sought temporary possession of the home of her former partner pending trial. Again, the titled partner was not residing in the home at the time of the motion. In the circumstances of Joyce v. O’Neil, the titled partner was living in a senior citizen’s home and the motions judge did not see how he would be able to resume living in his home. Further, the owner was of considerable means and had a number of options, although they were constrained by the state of his health. The motions judge did not determine whether the applicant was entitled to exclusive possession by virtue of the Family Law Act or otherwise, noting that it remained an open question as to whether a common law spouse could obtain interim possession of the other common law spouse’s property. He noted that the applicant was claiming an interest in the respondent’s property by way of a constructive trust. In the circumstances, he proposed to deal with the issue on a temporary basis, on a balance of convenience basis. This case is very different than Joyce v. O’Neil. The husband in this case is married and has a spouse who is claiming temporary exclusive possession of the matrimonial home.

c. Counsel for the husband’s mother went on to submit that the Court ought to permit his client to return to the matrimonial home on compassionate grounds and in the public interest and/or pursuant to Rule 2 of the Family Law Rules given that the husband’s mother has resided in the home for 25 years and the husband acknowledges that his mother has some interest in the matrimonial home. While I appreciate that the husband’s mother is 78 years old and had lived in the home for many years prior to November 19, 2020, there is evidence before the court as well that it was the conduct of the husband’s mother and brother which made it so untenable for the wife and children that the wife felt she had no option but to moved for an order for exclusive possession. As I have said above, I am not persuaded that the wife’s version of what the husband and his mother’s conduct is untrue or exaggerated. These issues will have to be determined at a later date. The Court does not have jurisdiction to make a substantive order on the basis of compassion or the public interest. The Court has discretion to control its own process but the relief requested is not procedural relief.

55Further, the evidence of the wife respecting the history which led to the separation and the other evidence before me creates real concern about the ownership issues as they relate to not only the matrimonial home but also the Dufferin St. property. The concession by the husband is not very convincing proof of his mother’s interest if any in the matrimonial home given that the husband’s mother asserts that she is the sole beneficial owner of it. The involvement of the husband and his mother in the decision to have him transfer his 50% registered interest in the Dufferin St. property to the mother, in or around the same time that the husband was pressuring the wife to consent to his transfer of title in the matrimonial home to his mother, creates real issues as to the true beneficial ownership of the matrimonial home.

56The husband’s mother is effectively taking the position that the wife is not entitled to an order for exclusive possession because the effect of that order is to deprive the husband’s mother of her alleged right to possession of the house.

57The husband is the registered owner of the matrimonial home where he lived from the time it was purchased until he was charged except for a four-year period. While his mother may have lived in the home throughout those years, the length of time in which she lived in the property is not, on its own, or together with the other evidence she has adduced, proof that she had the right to possession of the house. If a balance of convenience test is considered, the balance of convenience in this case favours the wife and two children. There is no evidence that the wife has any ability to move into alternate suitable accommodation, even on a temporary basis. The husband has yet to file a financial statement and thus, there is no evidence of the wife’s ability to successfully claim support that would enable her to move. There is evidence before the court that the husband’s mother is now the sole registered owner of the Dufferin St. property although she and the husband take the position that that property is owned solely by his sister. While the husband’s mother asserts that she cannot afford reasonable alternate accommodation, she also asserts that she cannot move into the basement of the house because she runs her catering business out of the kitchen on the main floor. The husband’s mother, however, does not claim any income from the catering business in her sworn financial statement. Further, while the husband’s mother has referred to the lack of options she has, she has not given any evidence as to why she would not be able to reside with one of her other three sons or many adult grandchildren. On the basis of the untested record before me, I am not satisfied that the husband’s mother claim prevents the wife from obtaining the order she seeks.

58I am not satisfied that the husband’s mother has a right to possess the matrimonial home that deprives the wife of her clear statutory right to possess the matrimonial home. Pursuant to s.24(3) of the Family Law Act, the wife has established that she is entitled to an order for temporary exclusive possession of the matrimonial home.

59Sections 24(3) and 24(4) of the Family Law Act state as follows:

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).

60The wife clearly established that it was in the best interests of both children that she have exclusive possession of the matrimonial home, particularly, given how Ailita and Sofia were suffering as a result of the husband’s mother conduct. The wife has some savings of approximately $9,000. She has no source of income and no alternate, appropriate accommodation available to her and the children. The wife does not work and she is solely responsible for looking after her infant and 10-year-old. It was clearly in the best interests of Ailita and Sofia to remain in the matrimonial home given the circumstances. Ailita exhibited signs of distress and fear of the husband’s mother, so much so, that she was scared to leave her room, go into the kitchen and eat for fear of being reprimanded and screamed at.

61Neither the husband nor the wife sought to cross-examine on the material filed. After the submissions had been made by the other parties, the husband’s mother’s counsel sought to cross-examine on the motion. I agreed to adjourn the matter and obtained a Jan 7th, 2021 return date for the motion, however, the husband’s mother’s counsel then decided to proceed with her submissions. Thus, as a result, parties anticipate that the order to be granted is a temporary order.

Conclusion and Order

62Accordingly, this Court orders,

a. The wife, Elena Reshetnikova, shall have temporary exclusive possession of the matrimonial home municipally known as 261 Prescott Avenue, Toronto, Ontario.

b. The husband, Wayne Rawlins, shall deliver a sworn financial statement within 30 days from the date of this Order.

c. The parties shall attend a case conference on April 16, 2021, at 2:00 p.m.

d. If the parties cannot agree on costs, a party seeking costs shall provide written submissions of no more than three pages, exclusive of any offers to settle, dockets and bill of costs by January 4, 2021. The party responding to a request for costs shall do so in similar form within 10 days of receipt of costs submissions. Reply submissions, if any, to responding costs submissions shall be no more than 1 page and provided within 5 days of receipt of responding submissions.

December 18, 2020 M. Kraft, J.

Footnotes

1The wife filed an initial affidavit, sworn on November 18, 2020, in support of the ex parte motion. Prior to the return of this motion, the wife filed an affidavit, sworn on December 1, 2020 and a Summary of Law, dated December 14, 2020. The paternal grandmother filed a responding affidavit, sworn on November 25, 2020; an affidavit, sworn on December 4, 2020; and a Factum, dated December 14, 2020. The husband filed an affidavit, sworn on December 2, 2020 in response to the wife’s November 18th affidavit, and a separate affidavit, sworn on December 2, 2020, in response to his mother’s affidavit sworn on November 25, 2020, as well as a Factum, dated December 14, 2020.

2Wife’s affidavit, sworn November 18th, 2020, at paragraph 12.

3Ibid, at paragraph 17.