Court File and Parties

COURT FILE NO.: FS-22-16075 DATE: 20230405 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARYANN RUTH ANDERSON, Applicant AND: MICHAEL PATRICK ANDERSON, Respondent

BEFORE: Tranquilli J.

COUNSEL: Mr. Joel Szaefer, for the Applicant Ms. Jessica Bonnema, for the Respondent

HEARD: March 30, 2023

Endorsement

1When does an “untidy” house entitle a spouse to exclusive possession of the matrimonial home following separation?

2On December 22, 2022, Carey J. granted an ex parte motion by the applicant, brought on an urgent basis, seeking exclusive possession of the matrimonial home at 1029 London Road, Sarnia, Ontario. The respondent immediately vacated the home. The applicant remains in the matrimonial home with the parties’ two children, ages 13 and 15.

3The respondent now brings this motion to set aside the order. He contends the applicant omitted material facts from the ex parte motion. He seeks interim orders granting him exclusive possession along with primary residency and joint-decision-making for the children.

4The applicant renews her December 2022 motion, seeking continuation of the order for exclusive possession, sole decision-making responsibility and primary residency of the children and parenting time with the respondent in accordance with the children’s expressed wishes.

5Both parties seek the involvement of the Office of the Children’s Lawyer, with the appointment of counsel for the benefit of the children. An order for that relief has issued on consent.

6These reasons explain why the court has determined the respondent’s motion should be dismissed and the applicant’s motion granted.

Background

December 2022 Ex Parte Motion

7The applicant mother submitted the respondent father created an intolerable nuisance through his treatment of the family home. She claimed that she and the respondent had separated over four years earlier and had been living separate and apart in the matrimonial home since then. She and the children lived on the main floor and the respondent lived in the basement. She deposed that she had been the primary caregiver for the children before and since separation.

8The applicant submitted that the respondent began to experience serious mental health issues following a surgery in 2018. The surgery prompted his move into the basement of the matrimonial home. He began to consume alcohol heavily. He “orchestrated” the termination of his employment from Bluewater Health in May 2022. He found a minimum wage position at a local hotel; however, stopped contributing to the household expenses. He was not contributing to household chores or care of the children. The applicant asked him to leave the home. He refused to do so.

9The applicant’s immediate concern was her contention that the respondent had embarked upon a pattern of destroying the basement level area of the matrimonial home. She was of the view that his conduct was combative and retaliatory. She was concerned he would further destroy the home if he was aware of the application.

10The applicant described that the lower level was full of dirt, garbage, damaged baseboards and walls and empty beer cans. He permitted the family dog to chew on the garbage and to defecate in the common area of the basement. He had taken to putting garbage and dirty clothing in the back patio, including in the barbeque.

11The applicant was most troubled by the respondent’s bathroom, which was dirty and full of garbage. He smeared feces on the walls and vanity and used family linens, including their daughter’s beach towel, to wipe up feces without then cleaning up the mess. The smell would become intolerable in the main living are of the house. The applicant felt compelled to clean up the basement areas, only to have the respondent repeat these behaviours.

12The applicant submitted the respondent’s careless and deliberate behaviour was harming their children’s emotional health and the value of their property. She included several photographs with her affidavit to illustrate her description of the deplorable condition of the basement.

13Justice Carey found that the applicant’s evident was “compelling” and granted the interim order for exclusive possession and adjourned the balance of the applicant’s motion to a later date.

Respondent’s Motion

14The respondent contends the motion judge would not have granted the motion had the court been made aware of material facts omitted by the applicant in her affidavit.

15He denies that they separated over four years ago and disputes that the applicant ever asked him to leave the house before she brought the ex parte motion. He contends they lived in the house as a family and that he regularly contributed to household chores and engaged in family activities. He submits he was the children’s primary caregiver given his hours of work and the applicant’s shift work. He claims the family regularly ate meals together until June 2022, when the applicant began to exclude him from family activities. The ex parte motion has now removed him from his role with the children.

16He explained that he suffered from ulcerative colitis. He underwent emergent surgery in August 2017, was hospitalized for six weeks. He is left with a permanent colostomy. He moved into the basement of the matrimonial home because of the smell and mess that can be caused by colostomy bags, particularly if they rupture. He deposes that he moved to the basement to “shield” the applicant and their children from the odour and mess. He admitted that the colostomy bag would rupture on occasion but that this was out of his control. Sometimes he did not have enough toilet paper and would have to use the nearest towel to clean up the mess.

17He admits to having put a hole in a wall by accident. He denies that the basement is regularly a mess as portrayed by the applicant and claims that she “cherry picked” the photographs submitted with her affidavit. He kept the empty beer cans for the purpose of returning them for the deposit, but as the second vehicle was broken down, he had no way of bringing them back to the store.

18He claims he was actively involved with the children and spent a lot of his time with the children and on the home as the applicant was the “breadwinner”. He stopped contributing to the household expenses when he started his new job as the applicant had previously controlled the use of his paycheque and limited his discretionary income to $100.00 per paycheque. He deposes he needs the money to buy colostomy supplies that are not covered by his medical insurance.

19He reports that he has been living in either the hotel where he is employed, when they have space, or in his van. He claims he cannot afford other accommodation. In his view, it is just for him to return to the matrimonial home to reside with the children. He submits she has been excluding him from parenting time and would not even allow him to see the children at Christmas. The applicant is better able to afford alternative accommodation on her salary.

20The applicant disputes the respondent’s version of events and denies that she staged the photographs. In her reply affidavit, she describes the improvement to the living situation in the home since the respondent’s departure. The children have reportedly commented to her that they feel “less stressed” and no longer feel “trapped” in the house and now feel free to have friends over. Photographs show the basement area to be free of garbage, dirt and fecal matter. She describes that the applicant regularly allowed his used colostomy bags to accumulate in the basement. The stench would eventually force her to go into the basement to dispose of them herself. She questions the nature of the respondent’s so-called “accidents” with the colostomy bags and points out that to use the children’s towels to clean up, he would have had to go the upper floor to get them when toilet paper was available to him in the basement.

21She denies isolating the respondent in the home and from the family. He made the decision to live in the basement and then to stop interacting with the family and to stop contributing to household expenses. She agreed that he could see the children on Christmas Day. However, he did not come to the house, disappointing the children.

Analysis

22The assessment of these motions is guided by s. 24 of the Family Law Act, R.S.O. 1990, c. F.3 as amended, and particularly the statutory criteria the court shall consider in determining whether to make an order for exclusive possession as set out in s. 24(3). This section is discretionary in that the court “may” make the order; however, courts will not lightly disturb the prima facie right that each spouse has to reside in the matrimonial home.

23The court is alive to the problem of the competing affidavits, particularly as it relates to the historical roles each party played in the relationship, when the parties began to live separate and apart and the views and preferences of the children. The court has also carefully considered whether there is evidence that the applicant “staged” the photographs or was selective in the photographs which she filed with the court and acknowledges the evidence should be approached with some caution.

24However, in all of the circumstances, the court accepts there is compelling evidence that objectively demonstrates that the living situation in the matrimonial home before December 22, 2022, was intolerable and unacceptable. While the respondent claims the separation came to him as a shock, he at least acknowledges in his affidavit that the parties had little to do with one another since at least June 2022, after his termination from employment.

25The court recognizes the respondent must manage a very unfortunate medical condition. The court appreciates that this was likely a traumatic and life changing experience that would impact his well-being. One can also understand that the condition could lead to accidents that would cause odour and mess. However, the respondent’s explanation fails to address the filthy state of the bathroom and why fecal matter was allowed to remain present on the walls, the vanity and used bathroom towels. As to the damage to the wall, the respondent fails to explain the nature of the accident that caused the hole, and what plans he made for its repair. The photographs of the beer cans and used and empty beer glasses are also consistent with the items being allowed to carelessly accumulate in the basement. There is no sign of efforts to gather the cans for return, as was submitted by the respondent. The state of the carpet and the garbage and dirty personal belongings strewn in the backyard and in the barbeque are also consistent with the applicant’s contentions as to the respondent’s behaviour and that he has engaged in this conduct over a prolonged period of time. The court agrees that this situation could not be allowed to continue given the impact on the state of the home and on the well-being of the applicant and children.

26The court does not accept that there was material non-disclosure by the applicant in her ex parte affidavit. She did not go into detail about the respondent’s medical condition or dependence upon a colostomy. However, she did reference the surgery and the respondent’s consequent move into the basement. The lack of detail about the colostomy does not weigh against the objectively deplorable condition of the basement and respondent’s inability to adequately explain the documented condition of the basement.

27The court is concerned about the respondent’s financial situation and his assertion that he is unable to afford alternative accommodation. However, he has not filed a financial statement as required by the Family Law Rules. He does not dispute that he has not been paying child support and he has not contributed to household expenses since June 2022. It is reasonable in the circumstances to infer that he is able to afford accommodation, although perhaps not with all the amenities offered by the matrimonial home. The court was advised he needs to have his own bathroom in order to manage his medical condition. This unsupported statement raises the question as to how he was able to work at Bluewater Health between 2018 and 2022 with the colostomy.

28The plans for the matrimonial home at this early stage of the proceeding are unclear. The applicant referred to the possibility of a buy out or even sale of the home, the latter option also supporting the need to ensure the property is not further damaged. Financial disclosure will assist in evaluating those options and also whether a spousal support claim will emerge.

29The views and preferences of the children are difficult to ascertain at this stage. They are expressed to the court through competing hearsay accounts of the parties. The respondent is concerned the applicant has “coached” the children. It is hoped that the Office of the Children’s Lawyer will appoint counsel on their behalf. That said, with reference to the evidence setting out the condition of the home while the respondent was in residence, one can accept that the filth and the stench would have an adverse effect on the psychological well-being of the children.

30As the children reside in the matrimonial home, at this stage the court is inclined to allow for sole decision-making by the applicant mother, with parenting time for the respondent in accordance with each child’s expressed wishes. As the children are 13 and 15 years of age, it is expected that the parties will encourage the children’s relationships with each parent and also respect their wishes regarding parenting time. The conflicting affidavits evidence that the parties are unlikely to be able to manage shared decision-making at this time. Given the factual disparity on the parties’ historical caregiving roles, contributions to the family and household and the views and preferences of the children, these orders will issue on an interim interim without prejudice basis in anticipation that a more comprehensive record and OCL representation will be available in the future to inform further determination of these issues.

Disposition

31For the foregoing reasons, the respondent’s motion is dismissed. The following orders shall issue:

a. On an interim basis, the applicant shall have exclusive possession of the matrimonial home, located at property municipally described as 1029 London Road, Sarnia, Ontario, and its contents, until further order of this court or agreement of the parties;

b. On an interim, interim, without prejudice basis, i. the applicant shall have sole-decision making for the children, L.A., born May 22, 2007 and A.A., born April 21, 2010; ii. the children L.A. and A.A. shall reside primarily with the applicant; and iii. The children L.A. and A.A. shall have parenting time with the respondent in accordance with their expressed views and preferences.

32The applicant was successful on this motion and is presumptively entitled to costs. If the parties are unable to resolve costs, the applicant shall deliver her written cost submissions by April 17, 2023 and the respondent shall deliver his written cost submissions by April 24, 2023. There is no right of reply without leave. Written submissions are limited to two pages, excluding offers to settle and bills of costs, 12-point font, regular margins.