Court File and Parties

Court File No.: FC-22-362 Date: 2022-08-03 Superior Court of Justice – Ontario Family Court

Re: Sarah Ashley Elizabeth Brac, Applicant And: Sean Alexander Honshorst Brac, Respondent

Before: Regional Senior Justice B. G. Thomas

Counsel: Matthew J. Villeneuve, Counsel for the Applicant Erin L. Reid, Counsel for the Respondent

Heard: July 29, 2022

Endorsement

[1] These are urgent motions brought with leave of Tobin J. but after he conducted a case conference.

[2] The applicant, Sarah Brac, and the respondent Sean Brac, were married on August 11, 2012. They separated on October 12, 2021. They continue to live in a state of acrimony separate and apart in their home. They have two children, Samson, age 9 and Mara, age 7.

[3] They have attempted to resolve their issues, particularly those regarding parenting, first with a parenting counsellor, and then in a mediation process with a skilled practitioner as the mediator. All efforts have failed including any progress that might have been made with Justice Tobin, but for an agreement as to a psychiatric assessment of Samson and the need for counselling for the children. As a result, I must impose an interim resolution as part of the litigation process. As always, that is unfortunate.

[4] It seems the greatest hurdle to resolution has been the parties’ inability to grasp a workable compromise on parenting that could satisfy the best interests of the children.

[5] The issues and positions raised by the applicant’s motion and the respondent’s counter-motion today, can be summarized as follows:

1. The applicant seeks joint decision-making with regard to the children but final decision-making if the parties cannot agree.
2. Exclusive possession of the matrimonial home at 60 Raywood Avenue, London.
3. The respondent to have contact in week 1 from Friday at 9:00 a.m. to Monday at 9:00 a.m. and then in week 2, from Thursday at 9:00 a.m. until Friday at 9:00 a.m.
4. An order about pickup at school.
5. Child support and spousal support.
6. An order for a disbursement amount to fund a support income report to establish the self-employed income of the respondent (although this issue was resolved by the parties with the respondent funding the report and any critique subject to a credit on equalization).

[6] The respondent seeks:

1. Joint decision-making.
2. Equal shared parenting time, either splitting or alternating weeks presumably, at least for the moment, using the matrimonial home as the continuing residence and base for the children.
3. Sale of the matrimonial home.

Financial Circumstances

[7] The applicant is well-educated in a number of disciplines but has not been employed full-time since the children were born. She was to start a 90 day contract position with Agri-Food Canada. I have a medical note from her doctor that she is unable to work until September, 2022 and her contract is delayed until then. The total remuneration for the contract would be $17,590.50. It is the applicant’s position that she is unable to work due to the stress of the conflicted relationship and the fact that they continue to reside together. Her income for 2021 was $11,233.

[8] The respondent is an audiologist and is self-employed. He owns 25% of the corporate shares of the business with his mother owning the balance. His income for 2021 was $107,257.

[9] The financial statements in this proceeding indicate the matrimonial home is estimated to be valued at $550,000, with secured debt of approximately $260,000.

Parenting

[10] There is no doubt that both parents love their children dearly and that the children are close to both of them as well. It is also clear to me that because of their differing levels of employment, the applicant has historically been the primary caregiver. The respondent’s material works hard to impress that there has been a fresh post-separation status quo and his affidavit details his care of the children and their activities.

[11] I accept that to be true. I have no doubt he is a good father. However, I also accept as accurate the applicant’s position that this contact time makes up only a small portion of each day, perhaps a quarter of the total time. This is not mentioned to fault the respondent, but rather to accurately assess the history of the care for the children as well as the present contact time.

[12] The respondent expresses that this history has developed because the applicant refuses to be fully employed. This is not an issue for me in this interim hearing and does not affect the observations I have made above.

[13] It seems that since October, 2021 the applicant and the respondent have attempted to share their time with the children. During that time, the non-contact parent either leaves the home or remains in another part of the residence. While the respondent claims this amounts to 50/50 shared parenting, again, I accept the applicant’s position that this is a significant over-estimate.

[14] The respondent has exercised some of his contact time at his parents’ residence. They live close by and have a close relationship with their grandchildren. It is the respondent’s position that, if necessary, pending the sale of the matrimonial home, he could live with his parents and he could parent 50% of the time at that residence. The applicant suggests that with his work schedule, this is impossible and the grandparents would in fact care for the children a great deal of the time.

The Children

[15] Both Samson and Mara attend St. Anthony French Immersion Catholic Elementary School. Over the past year, the children have been absent a considerable number of days. While Covid-19 is, in part, responsible the applicant maintains that the stress in the home is leading to them faking illness. The respondent states that the absences are simply Covid and illness related. It is concerning, however, that school records indicate regular absences due to illness.

[16] The applicant states as well that Samson’s school performance is suffering and his grades have been declining. The respondent indicates that the school has no concerns about the children.

[17] The applicant’s material advises that the children are having difficulty controlling their feelings and that there are emotional disruptions and outbursts. They kick, swear and hit both at home and at school. The respondent disputes this and says this behaviour is not something that takes place when they are with him.

[18] There appears to be no dispute that Samson suffers from anxiety. The applicant says it is worsening. The parties, as mentioned, have agreed upon a psychiatric assessment for Samson to be scheduled next month. As well, the parties agree that counselling for both children is important. The respondent believes counselling is necessary as they transition into two new homes.

[19] The parties have yet to inform the children that they are separating, but it is impossible to believe the children are not aware of the parental conflict.

Abuse

[20] The applicant maintains that the respondent is abusive. He refuses to speak to her in the presence of the children. He blames her for his absence from child-related events. He controls the family bank account and will only allow her to spend money directly related to the support of the home. The applicant has sought counselling from the London Abused Women’s Centre. The applicant states that the stress of this conduct has meant she could not work.

[21] The respondent’s position is that he will not engage with the applicant in front of the children so they are not immersed in the conflict. Beyond that, the respondent denies all other allegations of alleged abuse.

[22] I am not in a position to determine the allegations of abuse on the material before me, but it does not effect my ability to decide these interim issues.

Exclusive Possession/Sale of the Matrimonial Home

[23] The applicant seeks exclusive possession of the home. It is her position that continued cohabitation with the respondent is intolerable for her and would negatively impact the children. She argues that the children need to reside in the home they have always known. It is in the best interests of Samson and Mara.

[24] The respondent maintains that there are simply no grounds that would justify an exclusive possession order. There is no evidence, he suggests, that would allow me to come to the conclusion that the children’s best interests require maintaining the residence. On the contrary, it is the respondent’s position that the sale of the home is inevitable. The applicant has no realistic means of purchasing his interest. He is entitled to have the home sold and it is in everyone’s interest to sell it now and allow for the early establishment of separate residences and a 50/50 shared parenting regime.

Analysis

[25] This is an interim proceeding. The importance of that cannot be lost. An interim order should, as much as possible, stabilize the situation for the parties and the children so that the litigation can move forward to finally resolve the broader issues by conferencing, settlement or trial (F.B. v. C.H., 2021 ONCJ 275).

[26] There is no doubt and it appears no dispute that the parties cannot continue to reside separate and apart under the same roof. In considering the request by the applicant for exclusive possession, I must consider the criteria enumerated in s. 24(3) of the FLRA. Most important to me are the factors mentioned in s. 24(3)(a), (c) and (e):

(a) the best interests of the children affected;

(c) the financial position of both spouses;

(e) the availability of other suitable and affordable accommodation;

[27] As directed in Liao v. Liao, 2003 CanLII 2176 (ONSC) at para. 25: … “particularly in cases where the family’s financial position allows the temporary maintenance of two households, the children’s interests should outweigh the proprietary interest of the spouses in possession of the matrimonial home.”

[28] Here, there is evidence that the children are showing the effects of the stresses in the home. They have, at this point, not even been told about the separation. I accept that there is emotional upset being shown. I accept that the increased anxiety of Samson has lead to the parties agreeing to a psychiatric assessment. This is not the time to remove the children from the only home they have ever known. As this litigation progresses, the home will either be sold or purchased by one of the parties. This is, however, not the time and should not be the subject of an interim order in these circumstances.

[29] Further, the applicant has no means to support herself and nowhere to go to be with the children in any form of parenting schedule. The respondent earned $107,000 per year in 2021, and at least in the interim has other available suitable accommodation with his parents in close proximity to the matrimonial home.

[30] The parties cannot continue to live together. It is in the best interests of the children that they physically separate and that the applicant have an order for interim exclusive possession of the residence at 60 Raywood Avenue. The respondent is free to renew his application for the partition and sale of this residence as the litigation progresses.

[31] In Mohajeri v Stroedel, 2020 ONSC 6554, Kraft J. confronted similar circumstances. In that case, Mohajeri was a dentist and worked hard to pursue his career. Stroedel had historically been the caregiver. Justice Kraft found that the father’s claims of caring for the children 50% of the time was not credible and that the father was in a far better financial position to acquire alternative accommodation. It was important to stabilize the position of the children by granting a temporary order for exclusive possession. (Bloom v. Bloom, 2017 ONSC 1568, para. 38; Ruscinski v. Ruscinski, [2006] WDFL 2719, para. 144). Kraft J. ordered that Stroedel have interim exclusive possession and that Mohajeri have weekend access and pay temporary undifferentiated child and spousal support.

[32] In considering the interim parenting order, I focus on the best interest factors in s. 16(3) of the Divorce Act and the direction in s. 16(6).

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[33] I find that the applicant has in the past and continues to perform the majority of the day-to-day care for the children. I find that in the interim, the children’s needs and their stability could be best served by the following order:

(a) The primary residence of the children will be with the applicant;

(b) The applicant and the respondent will have joint decision-making responsibility, including all major decisions relating to the children. The ability of the parties to cooperatively make those decisions will inform that Court as to the form of any final parenting order.

(c) The respondent will have the following parenting time:

(i) In week 1 from Friday at 9:00 a.m. until Monday at 9:00 a.m.;

(ii) In week 2 from Wednesday at 9:00 a.m. until Friday at 9:00 a.m.

[34] I am hopeful that the parties can work together to manage pickups from school and to arrange additional parenting time when the resident parent is, for whatever reason, unable to be with the children. I am not inclined at this stage to make a further order. Similarly, I am hopeful that the parties will work together to equally share holiday time. It will be important to the Court, as this litigation progresses, to hear about the level of cooperation between the parties, and if they support each other and their roles with the children. I believe that in the interim, this order provides the maximum time with the respondent that is consistent with the best interests of the children. I have expanded the week 2 contact beyond that proposed by the applicant.

[35] I am unable at this stage to discern the views and preferences of the children. I believe involvement of the Office of the Children’s Lawyer is important in that regard and so there will be an order pursuant to s. 112 of the Courts of Justice Act for a report to be produced which will make these views and preferences known, if they can be ascertained, and make any other recommendations appropriate to these parenting issues.

[36] The applicant must receive both interim child and spousal support. As to the spousal support, there is clearly a need and also grounds for a compensatory claim. In any event, I am making a temporary spousal support order. Using the 2021 declared income of the respondent of $107,257, and the declared income of the applicant of $11,233, the respondent will pay interim monthly child support of $1,560 and interim spousal support of $825. The support will commence as of August 1, 2022. Commencing in the month of August 2022, the applicant will be responsible for the regular ongoing payments related to maintaining the matrimonial home including the mortgage, taxes, utilities and insurance.

Conclusion

(a) The applicant and respondent will have joint decision-making responsibility for their children.

(b) The primary residence of the children will be with the applicant.

(c) The respondent will have parenting time as follows:

• Week 1 – from Friday at 9:00 a.m. to Monday at 9:00 a.m.

• Week 2 – from Wednesday at 9:00 a.m. until Friday at 9:00 a.m.

This parenting schedule to commence with week 1 on Friday, August 7, 2022 and continue thereafter until a further order of the Court.

(d) The applicant will have interim exclusive possession of the matrimonial home at 60 Raywood Avenue, London. This order is effective forthwith but with providing the respondent a reasonable time to remove his personal belongings and other items as agreed upon.

(e) The respondent will pay to the applicant interim monthly child and spousal support fixed at $1,560 and $825 respectively and based on annual incomes of $107,257 and $11,233. The support to commence August 1, 2022 with the applicant becoming responsible for maintaining the home at the same time as described above.

(f) There will be an order directing the involvement of the Children’s Lawyer (“OCL”) in preparing a report on the views and preferences of the children and the form of any ongoing parenting order.

(g) There will be a review of the interim parenting and decision-making order I have prescribed here upon the completion and delivery of the OCL report or June 1, 2023, whichever comes first.

(h) If the parties cannot agree on any claim for costs for this interim proceeding, I will receive written submissions of no more than three pages (excluding the bill of costs) directed to the trial co-ordinator of the London Family Court. All submissions to be received within 30 days of the release of these reasons, failing which there will be no order as to costs.

Regional Senior Justice B. G. Thomas

Date: August 3, 2022.