Court File and Parties

Court File No.: F1063/19 Date: February 10, 2020 Superior Court of Justice – Ontario Family Court

Re: E.S., applicant And: A.S., respondent

Before: Tobin J.

Counsel: Robert Cunningham for the applicant Karen M. King for the respondent

Heard: January 29, 2020

Endorsement

[1] This is the respondent’s motion for a temporary order granting her exclusive possession of the parties’ matrimonial home and custody of their children.

Facts

[2] The parties married on October 10, 1998 and are the parents of three children: J.S., born in 2004; E.S.1, born in 2006; and E.S.2, born in 2010.

[3] The respondent, A.S., is 50 years of age and is employed as an elementary school teacher.

[4] The applicant, E.S., is 49 years of age and is a material planner. He leaves the matrimonial home very early each weekday and returns between 4:00 p.m. and 4:30 p.m.

[5] The parties and the children reside in the matrimonial home located in London, Ontario. They jointly own this property.

[6] The respondent’s evidence is that the parties have been living separate lives for several years. They had discussions about entering into a separation agreement in January 2018.

[7] The applicant’s evidence is that the parties separated on February 1, 2019.

[8] It is not possible, nor necessary, to make a finding as to the actual date of separation for the purposes of this motion.

[9] Both agree that they have been living separate and apart under the same roof since at least February 1, 2019.

[10] In February 2019, the parties attended mediation to address family law issues. They did not enter into a written agreement.

[11] Sometime between February 2019 and May 2019, the parties started to follow a childcare arrangement whereby:

(1) on Monday and Wednesday of each week, the respondent cares for the children after school;

(2) on Tuesday and Thursday of each week, the applicant cares for the children after 4:30 p.m.;

(3) on alternate weekends, one parent cares for the children from Friday through Saturday morning, then the other parent cares for the children until Sunday morning when the other parent takes over until Sunday night;

(4) the respondent cares for the children every weekday morning, ensuring they are ready for and attend at school.

[12] The parties do not agree when their respective weeknight responsibility ends. The respondent’s evidence is that the applicant’s responsibility ends when he goes to bed that night. The applicant’s evidence is that it ends at 8:00 p.m.

Positions of the Parties

[13] The respondent brings this motion because she contends that the current living arrangement has become unbearable for her and the children.

[14] The applicant asks that the motion be dismissed. He acknowledges that the parties argue but claims they do so infrequently. He asserts that both parents are aware of the impact on the children of arguing in front of them.

[15] The evidence of both parties is that, for the most part, they are able to work together to make decisions for and about the children.

Legal Considerations

Exclusive Possession

[16] The provisions of the Family Law Act, R.S.O. 1990, c. F.3, relevant to the issues of exclusive possession raised in this case are as follows:

Possession of matrimonial home

19(1) Both spouses have an equal right to possession of a matrimonial home.

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,

(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;

Order for exclusive possession: criteria

24(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.

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.

[17] The parties provided caselaw in which the Court considered cohabitation by parents with their children in the matrimonial home in the face of behaviour that was alleged to be intolerable and contrary to the children’s best interests.

Cases relied upon by the respondent

[18] In Sharma v. Sharma, 2014 ONSC 4801, Emery J. granted the mother exclusive possession of the matrimonial home in circumstances where:

1. she was the primary caregiver for the children; and

2. acrimony between the parties while residing together caused stress to every family member. The home was extremely unpleasant and an unhappy place to live. The court found the stress was not in the children’s best interests (at para. 17). The court considered Liao v. Liao, 2003 2167 (ON SC), [2003] O.J. No. 5063 (S.C.J.), where time-limited exclusive possession was awarded due in part to this being a “high stress environment” caused by the parties’ acrimony (Sharma, at para. 19).

[19] In Menchella v. Menchella, 2012 ONSC 6304, McGee J. held that violence can occur through words and deeds, including through electronic messaging. In assessing the words, the court should consider how they were intended to be perceived. In other words, how would a reasonable person understand the sender’s intention?

Cases relied upon by the applicant

[20] The cases relied upon by the applicant allow for some stress and strain when parties live separate and apart under the same roof:

a) In Bailey v. Bailey, [1987] O.J. No. 1372 (Dist. Ct.), there was no significant verbal abuse nor any physical abuse. The court found that, despite the parties’ unhappiness, they would not visit their unhappiness on the children.

b) In Sutherland v. Sutherland, [1987] O.J. No. 1373 (Dist. Ct.), exclusive possession was not granted where there had been stress between the parties for some time including a “couple of incidents of relatively minor physical abuse by the husband on the wife.” The children were described “as top students, well adjusted and socially accepted by their friends and classmates.”

c) In Perrier v. Perrier, [1989] O.J. No. 826 (H.C.J.), confrontation between husband and wife that included pushing and shoving could “hardly be classified as acts of violence” (at para. 11). In this case, the Court found that the request for exclusive possession was calculated toward gaining a tactical legal advantage as opposed to determining what was in the children’s best interests.

d) In Tweed v. Tweed, [1990] O.J. No. 1440 (H.C.J.), the Court did not grant exclusive possession where the wife was partly responsible for the husband’s conduct: “[s]ome of the conduct and verbiage alleged by her would cause a very placid individual to react in anger.”

[21] I do not find these older cases helpful in assessing what behaviour is now considered as making continued cohabitation unacceptable. They appear to minimize our current understanding of: (1) what effect exposure to domestic conflict can have on children; and (2) what may constitute domestic conflict between the parties.

[22] The presence of tension in the matrimonial home was more recently addressed in Hollinger v. Wang, 2019 ONSC 4807, where Charney J. observed, at para. 29:

Unpleasantness, inconvenience and even some tension are expected, perhaps inevitable, consequences of living separate and apart under one roof, but s. 24(3) does not include any of these considerations as stand-alone factors.

[23] In Menchella v. Menchella, 2012 ONSC 1861, McGee J. provides a helpful overview of the legislative intention behind the exclusive possession provisions of the Family Law Act and gives context to the behaviour that is to be assessed:

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 exception 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 or a spouse.

Admissible evidence on a motion

[24] Before analyzing the evidence, I will address the applicant’s submission that much of the respondent’s reply affidavit should be struck as containing argument, inflammatory statements, and facts that are not proper reply. He argues the prejudice to him is that he was not able to respond to the challenged reply evidence.

[25] Rule 14(20) of the Family Law Rules, O. Reg. 114/99, places restrictions on the evidence that may be used on a motion. Moving parties are expected to include, in their original affidavit(s), everything that is considered relevant to the issues raised in their motion: r. 14(20)(1).

[26] Rule 14(20)(3) provides that the party making the motion is allowed to “serve evidence replying to any new matters raised by the evidence served by the party responding to the motion.”

[27] Reply evidence may be filed by the moving party to respond to a new fact raised by the respondent which the moving party had no opportunity to deal with or could not have reasonably anticipated.

[28] Reply evidence is not available to confirm or amplify evidence already given or that could have been provided at first instance.

[29] However, r. 14(20) allows the court to relax these restrictions if “the court orders otherwise.” A circumstance where a court may order otherwise is where the evidence is relevant, necessary, and probative to determining a child’s best interests: Shah v. Irvine, 2018 ONSC 7359.

[30] With respect to statements that are argument or inflammatory, counsel for the applicant relies upon Evans v. Evans, 1998 18228 (ON SC), [1998] O.J. No. 5098 (Gen. Div.). At paras. 4 and 5 of that decision, Aston J. stated:

It is not appropriate for a witness to state as a fact some conclusion that must be drawn by the court itself. It is only appropriate for the witness to swear to the facts from which the court may draw its conclusions.

The opinions and conjecture of the deponent are not properly evidence before the court, particularly those that make assertions about the motivation or thoughts or feelings of someone else.

[31] After reviewing the respondent’s reply affidavit, I find that it does contain conjecture, reference to events that occurred before her original affidavit was filed, and argument. Much of this concerns evidence that was given in support of her submission that she has been and remains the children’s primary caregiver.

[32] Rather than parse this 13-page, 79-paragraph affidavit, I will rely upon evidence contained within it only to the extent identified in this endorsement. Those parts of the affidavit not referred to will not be considered. I find this to be an efficient, fair, and proportional way to address the issues raised in this motion that concern the best interests of the children.

Analysis

[33] On the record before me, there is conflicting affidavit evidence about the parents’ behaviour toward each other and in front of the children that was not tested by cross-examination. There is also considerable conflict about the roles each parent played in caring for the children. This being the case, I must be cautious in making findings of fact.

[34] The respondent describes the current living arrangement in the matrimonial home as causing a great deal of tension to which the children are exposed. She further deposes that the situation in the matrimonial home is unbearable for her and the children. The facts upon which she makes these assertions are these:

(1) E.S.1 has, on several occasions, stepped in front of the applicant and told him to “shut up and leave [the respondent] alone.” The applicant made a blanket denial of all of the respondent’s evidence but not a specific one related to these incidents. What diminishes the weight to be assigned to this evidence is that particulars of when and in what circumstances E.S.1 involved himself in these incidents were not provided. Context is missing.

(2) The respondent hides in a room to avoid the applicant’s personal attacks. The applicant denies this to be true. His evidence is that the respondent is home infrequently when he looks after the children. When she is home while he is there, his evidence is that the respondent does not withdraw to her room.

(3) On October 8, 2019, while he was caring for E.S.2, and in her presence, the applicant screamed at the respondent that she was a “fucking bitch.” His evidence is that this was the only time that he lost his temper in that manner. In his evidence, the applicant attempts, without convincing effect, to give some context and explanation for this wholly inappropriate behaviour.

(4) There is a text exchange between the applicant and the oldest child, where the latter expresses rage and upset with the applicant. In the applicant’s evidence, there is a text exchange between them where the son takes back his anger and upset.

(5) The respondent has blocked the applicant from texting her. This is to avoid his harassment. The applicant described this allegation as strange. He denies sending her abusive messages.

(6) The children are stressed on Tuesday because the applicant leaves them home alone after 8 p.m. while he plays volleyball. The children then call the respondent, who returns home to care for the children.

[35] In her reply affidavit, the respondent repeats her conclusion that the current living arrangement is stressful for everyone in the family. I will not, without explanation, consider events described in the reply affidavit that took place before she swore her original affidavit. To do so would be akin to allowing her to split her case. The applicant has had no chance to respond to these events.

[36] Also, in her reply affidavit, the respondent raised the issue of the applicant’s mental health as a possible reason for his stress-causing behaviour, just as she had in her original affidavit. In the reply affidavit, she gave evidence of finding in or near a recycling bin a referral for the applicant for psychological counselling for “stress / mood disorder / marital separation.” This is similar to the evidence contained in her original affidavit, wherein she stated that the applicant acknowledged not being in a “good place and is on medication to help him deal with the stress.” I accept that the applicant is experiencing stress at this time. I also find that, on occasion, he has acted in a manner that has caused stress for various family members.

[37] I also take into account that, within the reply affidavit, the respondent’s evidence is that “for the most part [the parties] are able to make decisions together for the children” (see para. 28) “including sharing Christmas” (see para. 54(e)).

[38] At para. 59 of the reply affidavit, the respondent repeats that she is subject to verbal abuse and harassment by email and texts. Without specifics, the respondent’s evidence is that the applicant speaks disparagingly of her to the children and concludes “it is simply unfair to me to have to continue living in this manner and it is unfair to the children.”

[39] On the evidence that I do accept and rely upon, I find that at times there is tension and stress in the matrimonial home. This is caused by the parties’ verbal and written interactions. I also find that the children have seen and reacted to this tension.

[40] However, on the controverted evidence in the record before me, I am not able to find that the tension and stress is sustained and continues to such an extent that removing the applicant from the matrimonial home at this time is required in the best interests of the children. The tension and stress appear to flare up only on occasion, and at most other times the parties have a schedule that provides predictability and structure for the children and parents while they attempt to resolve matters arising from their separation.

[41] In determining whether to make an exclusive possession order, I am required to consider the other factors set out in ss. 24(3) and (4) of the Family Law Act.

[42] I am unable to ascertain the children’s views and preferences on the basis of the conflicting evidence before me.

[43] I accept that the applicant does not have the financial resources at this time to immediately remove himself from the matrimonial home and still assume the parental responsibilities he currently undertakes. The respondent appears to acknowledge this when she deposes that the applicant should have 60 days to find new premises. This request is consistent with a finding that the tension and stress of the home is not constant to the point of it being unbearable. As stated above, I do accept that there is tension and that it is unpleasant and most inconvenient for the parties to live separate and apart under the same roof.

[44] The applicant wants this matter to move forward more expeditiously. I agree that this must occur. After living separate and apart under the same roof for over one year, it is time for these parties to bring this case to a quick resolution.

[45] The record discloses that the parties are scheduled to attend at a settlement conference on February 25, 2020. Very shortly, the parties will have the opportunity, with the assistance of judicial input, to narrow significantly or perhaps resolve the issues between them, including what is to happen with the matrimonial home.

[46] Despite Ms. King’s able argument, I am not satisfied that the instances of tension and stress that can be ascertained on this record rise to the level of warranting the dramatic and highly prejudicial effect of excluding the applicant from the matrimonial home at this time.

[47] When I take into account the uncontradicted evidence and the required legal considerations, especially the best interests of the children, I find that the respondent’s request for an order for exclusive possession and custody of the children must be dismissed at this time.

[48] I recognize that continuing to live separate and apart under the same roof is not a static situation. Tension and stress may increase and adversely affect the children.

[49] Should the applicant’s actions escalate in severity or frequency, the respondent will be at liberty to renew her request. Any further motion brought with respect to exclusive possession of the matrimonial home shall be scheduled before me.

[50] Based on the circumstances described in this endorsement, I am inclined to direct that there be no order for costs of this motion. However, if either party wishes to make submissions, they may do so within ten days of the release of these reasons.

“Justice Barry Tobin”

Justice Barry Tobin

Date: February 10, 2020