Court File and Parties

COURT FILE NO.: FC-22-030 DATE: 2022/03/22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Adam Charles Ellens, Applicant AND: Bobbi-Lynn Ellens, Respondent

BEFORE: The Honourable Justice M. Fraser

COUNSEL: Cedar Swartz-Fisher, Counsel for the Applicant Stephanie Luskey, Counsel for the Respondent

HEARD: March 9, 2022

Endorsement

[1] The Applicant, Adam Charles Ellens (the “Applicant”) brings a motion asking for a temporary order for exclusive possession of the matrimonial home and surrounding lands and buildings, located on farm property owned by him at the municipal address at 38602 Highway 41 Pembroke, ON K8A 6W4 (the “matrimonial home and farm property”).

[2] The Respondent, Bobbi-Lynn Ellens (the “Respondent”) brings a cross-motion and she also asks for a temporary order for exclusive possession of the matrimonial home and farm property. In addition, the Respondent asks for an order restraining the Applicant from contacting the Respondent and her children directly or indirectly; and order restraining the Applicant from coming within 100 feet of the matrimonial home and farm property; a temporary order restraining the depletion of the Applicant’s property and all jointly owned property that would impair a claim under Parts I and II of the Family Law Act.

[3] Both parties agree that the present living arrangements are intolerable and that this motion should be heard on an urgent basis prior to a Case Conference.

Background

[4] The parties began to cohabit in July 2018. They were married November 16, 2019.

[5] Both parties have children from previous relationships.

[6] The Applicant has two twin boys, William and Wyatt, who are presently 9 years old. The Applicant shares parenting of William and Wyatt with their mother on a week-about basis.

[7] The Respondent has a daughter named Jaxon who is 15 and a son named Ryder who is 10 years old. Her children reside in her principal care. They have resided with the parties at the matrimonial home and farm property for the past three and a half years.

[8] The property which comprises the matrimonial home and farm was acquired by the Applicant in 2006. Title to the property remains in the Applicant’s name alone. The property consists of 100 acres of mixed forest and agricultural land. There is one home, garage, machine shed, barn and numerous outbuildings on the property.

[9] There is a mortgage registered against the property and it is in the Applicant’s name alone. There is presently $130,166.00 owing on the mortgage. The Applicant maintains that he is solely responsible for the expenses associated with the property (ie. mortgage, utilities, property taxes, and insurance).

[10] The Applicant carries on business as a farrier, and he also farms the property. The farming business involves haying, previously breeding horses, and raising some pigs, chickens and cattle.

[11] Once the parties began to reside together, they began to run a business, Adalynn Farm and Equestrian Centre (“Adalynn Farms”). The business involves the boarding of horses on the farm property and riding lessons. At present there are approximately twenty horses being kept there, ten of which are boarding.

[12] The Applicant oversees the accounting and financial management of the business except that the Respondent would collect and keep the income from the provision of riding lessons. The Respondent was solely involved in the provision of riding lessons.

[13] Additional to providing riding lessons and assisting with the care of the boarded horses, the Applicant works occasionally as a emergency supply teacher at one of the local high schools.

[14] The relationship between the parties has deteriorated over the course of the past year. Both parties presently find cohabiting at the matrimonial home to be intolerable.

[15] The Applicant maintains that he told the Respondent that he wanted a divorce in September 2021. The parties unsuccessfully attempted marriage counselling.

[16] Ultimately, the relationship deteriorated and the parties began to live separate and apart under the same roof. The parties are not in agreement as to precisely when this happened. It may have been in early November 2021 but at the latest by early December 2021.

[17] By December 2021 it is clear that the level of conflict between the two parties had escalated.

[18] In January 2022, the Applicant temporarily arranged for William and Wyatt to stay with their mother on a full-time basis as the Applicant asserts that his boys were scared and uncomfortable being around the Respondent. According to the Applicant, William and Wyatt are having a difficult time with this change in the parenting arrangement as they have lived in the matrimonial home since their birth, they are accustomed to the Applicant having parenting time with them on a shared basis and this property is their home.

[19] The Applicant has asked the Respondent to find an alternate place to live. However, this has not happened. He believes the Respondent is trying to expel him from the property where he has conducted a successful business for the past decade.

[20] In November 2021, the Applicant was admitted to the acute mental health unit at the Pembroke Regional Hospital for nine days. He has produced correspondence from the treating psychiatrist which states that his admission to hospital was related to his mental health and well-being and states that it was “driven by the stress due to breakdown of his relationship with his wife.” Additionally, this correspondence reports that “(h)e is compliant with his treatment and is making progress although he has ongoing social (divorce issues) stress that is slowing down his recovery.”

[21] The Applicant asserts that he moved out of the master bedroom and “built” his own private bedroom on the main floor by partitioning some space in the family room of the house.

[22] The Respondent maintains that she has no other place to go with her children and that she needs to be in the matrimonial home in order to be available to care for the horses which are boarded on the property.

[23] Both parties attest to behaviour by the other which they attribute as the cause for the present conflict.

[24] In particular, the Applicant maintains that: (a) The Respondent has refused to assist with the care of William and Wyatt and their home-schooling, and she insisted that the boys leave with the Applicant when he was not home; (b) The Respondent has contacted the police on several occasions to complain about the Applicant’s behaviour. The Applicant believes she is trying to create a false narrative that the Applicant is mentally ill, abusive and an alcoholic; (c) The Applicant claims the Respondent is abusing alcohol and becomes antagonistic and prone to initiate conflict when that happens; and (d) While the Applicant initially attempted to keep his communications open with Jaxon in order to assist her with understanding the parties’ separation, he maintains that he felt the Respondent’s request to him that he do so was actually complicating matters, and the Respondent in reaction to this has told her children Jaxon and Ryder not to speak with the Applicant.

[25] In contrast, the Respondent maintains that: (a) The Applicant has longstanding mental health and addiction issues. She believes that given his mental health crisis that she lives in genuine fear that his erratic behaviour will escalate and that he will harm her or the children physically; (b) The Applicant is engaging in deliberate attempts to make the living conditions unbearable and that he has turned off the hot water tank when her daughter was in the shower, blared loud music late at night on weekdays, installed surveillance equipment in the home and shouted at her children to pack up their belongings and leave; (c) The Respondent maintains that she is responsible for operating and managing the boarding of the horses; and (d) The Respondent asserts that she is the least able to remove herself from the home because she cannot afford to do so.

[26] The Ontario Provincial Police have attended the matrimonial home on several occasions at the request of the Respondent. The Respondent maintains that she has done so out of fear for the children’s safety but that she has never made criminal allegations against the Applicant.

Analysis

Exclusive possession

[27] Both parties concede that it is not desirable that they both continue to reside in the matrimonial home and that their continued joint occupation has become intolerable.

[28] Section 19 of the Family Law Act provides that:

19. POSSESSION OF MATRIMONIAL HOME – (1) Both spouses have an equal right to possession of a matrimonial home. (2) IDEM – 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.

[29] Section 24 of the Family Law Act allows the court to direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs. It also sets out the criteria the court shall consider when determining whether to grant an order for exclusive possession. The relevant provisions are as follows:

24(1) ORDER FOR POSSESSION OF MATRIMONIAL HOME – (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;

24(2) TEMPORARY OR INTERIM ORDER -- The court may, on motion, make a temporary or interim order under clause (1)(a), (b), (c), (d) or (e).

24(3) ORDER FOR EXCLUSIVE POSSESSION: CRITERIA -- 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.

24(4) Best interests of child 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.

[30] The Act presumes that a property ordinarily occupied by an individual's and that individual spouse as a family residence is their matrimonial home for purposes of the Act. Section 18(1) provides as follows:

18. MATRIMONIAL HOME – (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 is their family residence is their matrimonial home.

[31] This section, however, further provides as follows:

(3) RESIDENCE ON FARMLAND, ETC. – If property that includes a matrimonial home is normally used for a purpose other than residential, the matrimonial home is only the part of the property that may be reasonably regarded as necessary to the use and enjoyment of the residence.

[32] The matrimonial home in this case is located upon 100 acres of property more or less which is owned by the Applicant and which he purchased prior to the marriage.

[33] The parties’ evidence, albeit limited at this juncture, is consistent from both that the farm property is presently used for several business purposes: haying, boarding of horses, riding lessons, and perhaps some farrier work (usually the Applicant attends at the customer’s barn to trim/shoe).

[34] The revenue generated from all of the business, with the exception of the riding lessons, are owned by and the income is attributed to the Applicant for tax purposes.

[35] The Respondent kept the revenue generated from the riding lessons. However, the income she has declared earned from this is negligible.

[36] There seems no doubt the Respondent played a large role in the boarding operation as well. However, she was not paid an income and at best I suspect that this aspect of the business could be best described as a joint venture by the parties.

[37] The Respondent’s evidence is to the effect that she is very much dependant upon the use of the farm property (and the businesses run from it) as a means to support herself. However, she has not demonstrated that the riding instruction is profitable. Further, I am not satisfied that the Respondent’s ability to earn income through this means is necessarily tied to this property. She had been providing riding instruction for many years prior to the parties getting together at other riding stables.

[38] There was very little to no evidence in the parties’ motion materials respecting any recreational or private use of this farm property. Rather, the parties’ evidence was that the use of the farm property was largely related to the boarding operation and small scale farming.

[39] It is on this basis, for the purpose of this motion only, given the limits on the evidence before me, that I conclude that the farm property does not form part the “matrimonial home.” This is where, in my view, the Respondent’s argument that she requires an order for exclusive possession of the matrimonial home so that she can carry on the business of boarding the horses fails. The flaw in this argument is that even if the Respondent is granted exclusive basis of the matrimonial home, given that the “matrimonial home” in this instance appears to be restricted to the actual home and any immediate yard and driveway, any exclusive possession order will not accomplish the Respondent’s stated objective. An exclusive possession order will not confer her with the authority to use the remainder of the farm property and outbuildings. That property is owned by the Applicant alone. The use of the land and outbuildings appear to fall completely into the purview of section 18(3) of the Family Law Act and does not form part of the matrimonial home. Section 24(3) permits me to grant exclusive possession of the matrimonial home only. It does not confer jurisdiction to grant exclusive possession of property which does not form part of the matrimonial home.

[40] I next consider which party ought to remain in possession of the matrimonial home, pending further order.

[41] In this respect, I will consider the criteria set out in section 24(3) of the Family Law Act:

(a) the best interests of the children affected; There is no easy way to reconcile the competing interests at play when considering the children affected in this instance. Both parties brought to the relationship children from previous relationships. The Respondent has two children who have been primarily in her care throughout the parties’ relationship and therefore have been residing in the matrimonial home since July 2018. The Applicant has two younger twin boys who have been residing with him every second week. This matrimonial home was the home for the Applicant and their mother. In this respect the matrimonial home is really considered by the twins as having always been their home.

(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations; There is no existing order to be considered.

(c) the financial position of both spouses; Both parties claim to be dependant upon the existing business carried on at and from the farm property as a means of financial support. Given the ownership of the property, I don’t see that the Respondent is going to be able to maintain the businesses in the manner she did during the relationship. She might be able to teach riding lessons out of another riding stable. She did not, in any event, report any significant income from her efforts. The Applicant’s farrier business could continue without the use of the farm property. The Applicant is not intending on continuing to board horses over the long term. He does rely upon haying the property and has other farm animals. The Respondent may be entitled to some support from the Applicant over the short term at least which would address the issue of the Applicant’s ability to support herself. His ability to pay support is to some extent tied to the continuing to run the businesses from the property. The Respondent receives monthly child support for her two children from their biological father.

(d) any written agreement between the parties; There is no written agreement between the parties.

(e) the availability of other suitable and affordable accommodation; There was no concrete evidence led on this other than the Respondent’s assertion that appropriate alternate accommodations are not available. The particulars of any efforts made to find accommodations has not been provided.

(f) any violence committed by a spouse against the other spouse or the children; While the Respondent called and had the police attend at the matrimonial more than once, it is clear that this arose as a result of verbal conflict between the parties. There is no evidence of physical violence, abusive conduct or verbal threats by either party.

[42] In determining the best interests of a child, the court is to consider the possible disruptive effects on the child of a move to other accommodations; and the child's views and preferences, if they can reasonably be ascertained. No independent evidence has been proffered of the children’s views. In the case of the Applicant’s twin boys, who have been at their mother’s home in an effort to shelter them from the parties’ conflict, the Applicant reports that they are upset and miss their home. It is clear that if either party is required to vacate the matrimonial home, that this will cause their children a certain level of disruption and stress.

[43] The parties, who had a passion for horses and a rural lifestyle in common, embarked on this relationship believing they had the formula for a long happy life together. This is not how things have turned out. Unfortunately, I conclude that there simply is no easy solution to what needs to happen next.

[44] Additionally, this motion is before the court on an urgent motion prior to a case conference. My decision is necessarily hindered by the constraints posed by the fact that we do not have the benefit of a full evidentiary record. As such, any finding made by me as to what constitutes the “matrimonial home” is necessarily for the purpose of this motion only.

[45] At this juncture, both parties agree that the present living circumstances are intolerable and that one or other of them needs to leave the matrimonial home.

[46] In my view, the Respondent has not put forward a sufficiently compelling basis for exclusive possession of the matrimonial home. The marriage in this instance was relatively short, her children are slightly older that the Applicant’s children and this has not been their lifetime home. The Respondent would not have the benefit, in my view, of using the remainder of the farm property for the reasons outlined above. While I understand that the Respondent has limited financial resources, her skills as a riding instructor are not tied to the property, and it could be that she will be entitled assert a claim for spousal support, over the short term at least.

[47] On the other hand, some aspects of the Applicant’s income is very much dependant upon the use of the farm property and being present on the property. Even if the boarding of horses is something the Respondent assisted with, the property and that business belongs to the Applicant.

Restraining order

[48] A restraining order may be made against a person if the requesting party has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

[49] In considering whether to grant such an Order I must ensure that an appropriate balance is maintained between ensuring that victims of violence are protected while also ensuring that such orders, which can have criminal consequences and which are registered in CPIC, are only granted with good reason and where a clear case has been made out.

[50] It is not sufficient to grant such an order on the basis that there would be no harm in granting the order (See: Edwards v. Tronick-Wehring, 2004 ONCJ 309).

[51] A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to the Respondent’s actions or words.

[52] The onus is on the person asking for the restraining order on a balance of probabilities to convince the court that an order is required.

[53] In my view, the Respondent’s evidence is not sufficient to warrant a restraining order. Her evidence of the Applicant’s conduct does not, in my view, support the conclusion that she has reasonable grounds to fear for her own safety or for the safety of any child in her lawful custody. I understand that the living conditions have been very unpleasant for both the parties and their children and that the present level of conflict between them needs to stop.

[54] However, the Respondent’s evidence does not support a level of harassment or demonstrate inappropriate conduct by the Applicant which would suggest that either the Applicant or her children have reasonable ground to fear for their safety.

[55] The request for a restraining order is therefore denied.

Non-depletion order

[56] Likewise, I am not satisfied that the evidence on this motion supports a non-depletion order. Rather, the evidence, in my view, would suggest that the Applicant has continued to make payments in a pattern which is consistent with past practices and in a way consistent with running the various businesses.

Disposition

[57] A temporary order shall issue as follows: a) Unless the parties agree to other arrangements, the Respondent shall have until April 30, 2022 to move from the matrimonial home; b) As of May 1, 2022, the Applicant shall be entitled to exclusive possession of the matrimonial home, pending further order; c) If the parties are not able to settle the issue as between themselves, the Respondent shall have leave to bring a motion prior to May 1, 2022 to address any claim for a temporary order for spousal support; and d) The Respondent’s claim for a temporary restraining order and for an order restraining the Applicant from depleting his or the parties’ jointly owned property is dismissed.

[58] If the parties cannot agree on the costs of this motion, then the Applicant may make written submissions as to costs, no more than three pages in length, double-spaced, in addition to any pertinent offers and draft bill of costs, within twelve days of the release of this endorsement. The Respondent has twelve days from receipt of the Applicant’s submissions to respond on the same basis. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

M. Fraser J. Date: March 22, 2022