Court File and Parties

COURT FILE NO.: FS-23-38152 DATE: 20231018 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Lesley Mary Taafe, Applicant AND: William Arthur Taafe, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Sarah Conlin & Courtney Edwards, for the Applicant Dara Khoeum, for the Respondent

HEARD: October 17th, 2023

Endorsement

Overview

[1] After being married for 26 years, the parties’ separated on July 21, 2023, when the applicant (“wife”) was charged with assaulting the respondent (“husband”) and their adult daughter, uttering death threats and mischief. The wife cannot attend at the matrimonial home due to the terms of her Recognizance, dated July 21, 2023. The wife has four special needs horses and a donkey that live on the matrimonial home property in a barn. Until the separation, the wife solely cared for these animals and attended to their extensive care needs. This is the return of the wife’s urgent motion in which she seeks exclusive possession of the matrimonial home, located at 207 Slanted Road, Reaboro, Ontario (“Slanted Road”); alternatively, an order permitting her to remove her four hours and donkey; an order for the partition and sale of Slanted Road; and an order for the immediate return of her two laptop computers. The husband cross-moved for exclusive possession of Slanted Road.

Issues to be Decided on the Motion

[2] The issues that I need to decide on this motion are as follows:

a. Should either party be granted exclusive possession of Slanted Road pending its sale?

b. Depending on the answer to a., how should the horses and donkey be cared for?

[3] The husband put forward a third issue for the court to decide, namely, whether Sharma, J.’s consent order, dated September 26, 2023 should be varied, suspended or discharged. On September 26, 2023, at the return of the wife’s urgent motion, Sharma, J. decided to conference the issue, since the parties had not yet attended a case conference. At this attendance, the parties reached a consent order, the terms of which adjourned the wife’s exclusive possession motion to October 17, 2023, and provided that, pending the return of the motion,

a. the wife was to be given access to the barn at Slanted Road, three times a week, for up to six hours each visit, to tend to the horses. The order sets out that the wife is not to have access to the matrimonial home except for one visit to collect her belongings and clothing; and

b. the husband was to return the wife’s two laptop computers.

[4] Despite having counsel at the attendance before Sharma, J. and consenting to this order, the husband breached the order as follows:

a. The husband’s counsel wrote to the wife’s counsel the following day (September 27, 2023) stating that the wife could not attend at the farm and if she did, he would call the police.

b. When the wife’s counsel sent the husband’s counsel the draft consent order of Sharma, J. for approval as to form and content, the husband’s counsel did not respond.

c. On September 28, 2023, the wife’s counsel suggested, given the husband’s refusal to follow the order, that the parties immediately list Slanted Road for sale and the horses be immediately transferred to the wife. The husband’s response was that the horses are “matrimonial property” and that the husband would call the police if the wife tried to remove them from the home.

d. The husband did not take steps to return the wife’s two laptop computers to her, claiming it should not be his responsibility to pay for her to receive these items.

[5] I do not agree with the husband that there is a third issue to be determined or that Sharma, J.’s consent order dated September 26, 2023, should be varied, suspended or discharged. Justice Sharma’s order was a temporary temporary consent order put in place, pending the return of today’s motion. Although the husband lists 14 reasons in his Factum as to why the Endorsement should be varied, there is no reason to vary an order which was only operative until the return of the motion. Furthermore, Sharma, J. did not make a determination on a substantive issue that resulted in his Endorsement. Instead, Sharma, J.’s Endorsement codifies a consent agreement reached by the parties where both parties were present and had counsel. As I advised counsel for the husband during the motion, if he or his client wanted to change the order pursuant to Rule 25(19) of the Family Law Rules, O. Reg. 114/99 (“FLRs”), the appropriate procedure would have been to bring a 14B motion or contact Sharma J., on notice to the wife, that his client was seeking a change to the order. He did not take appropriate steps to address this matter. Instead, the husband engaged in self-help and disobeyed a court order. Pursuant to Rule 1(8) if a person fails to obey an order, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including an order for costs. I find that the husband should pay costs to the wife in connection with the costs thrown away at the attendance before Sharma, J. on account of his wilful breach of that order.

Issue One: Which party should be granted exclusive possession of Slanted Road pending its sale?

[6] Section 24(3) of the Family Law Act is the operative section giving the Court jurisdiction to grant exclusive possession of a matrimonial home and states as follows:

Order for exclusive possession:

(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.

[7] By way of brief history, the parties were married on September 19, 1997. In 2004, they immigrated from the U.K. to Toronto. They have two adult children, Ke. age 33, and Ki., age 30. Ke. is currently in school to become a police officer. Ki. is a police office. The wife worked as a lawyer until 2021 and has been unemployed since then. The husband is a police officer.

[8] The wife was charged with assaulting the husband and Ke., uttering death threats, and mischief over $5,000 on July 21, 2023. She was released on a Recognizance the terms of which require her not to attend at Slanted Road. After the arrest, the wife moved in with the parties’ adult son, Ki. in Toronto in his one-bedroom apartment.

[9] The husband and Ke. have resided at Slanted Road since the separation. Ke. attends Police college and is not home during the week. Ke. returns to Slanted Road on weekends and for holidays. Title to Slanted Road is in the parties’ joint names.

[10] The wife owns four horses and a donkey, which are stabled on the matrimonial home property in a barn. Three of the four horses have special needs and the fourth horse is quite old. The animals require extensive care and the wife submits that prior to her arrest, she spent 6 hours a day tending to their care, not including time spent grooming them and cleaning the stable. The wife is extremely concerned that the horses are not being properly cared for by the husband. She claims the husband did not care for the horses during the marriage and he does not have the skills needed to look after them. The horses’ veterinarian confirms that the wife is the sole caregiver and owner for the horses. The husband claims the horses are being cared for by him, Ke. when she is home, and an 18-year-old girl who was hired by the wife to assist with cleaning the stable. The wife argues that this could not be possible since the husband works 12 hour shifts. She claims to be the only person able to properly look after these special needs horses.

[11] The wife is unemployed. She has not worked since September 2021, when she wound up her legal practice. She is currently in receipt of disability insurance of $900 per a month. She has no ability to work due to her medical conditions. She developed breast cancer in 2018 and underwent surgeries, chemotherapy, and radiation. While she is currently stable, she is monitored regularly. The husband is a police officer and earns at least $149,000 a year. Although the husband has not filed an Answer or sworn financial statement, he did not dispute that he earns this income. In answer to a question from the court, the husband advised that he works fourteen 12-hour shifts over a two-week period, 8 of which are night shifts and 8 of which are day shifts. The husband has not paid any spousal support since the separation.

[12] The parties jointly own a rental investment property in Oshawa, which is occupied by a third party tenant. The wife cannot afford to carry the costs of the rental property without the rental income. She argues that the rent income does not cover the expenses of the property and, as such, the rental property operates at a loss.

[13] On August 14, 2023, the terms of the wife’s Recognizance were varied to allow her to communicate with the husband through counsel. The wife’s lawyer then contacted the husband to inquire as to whether her client could attend at the barn to care for the horses. The husband did not respond and, instead, reported the wife to the police for breaching the terms of her Recognizance.

[14] The wife denies that she assaulted the husband or Ke. on July 21, 2023. She submits that she suffered family violence by the husband and that the husband has a drinking problem. The husband deposes that he and Ke. have suffered emotional and physical abuse by the wife and that the wife has a serious drinking problem. He attaches pictures and videos as Exhibits to his affidavit that show bruises on Ke.’s arms, the wife throwing a medicine bottle at the husband; yelling and screaming between the wife, the husband and Ke., and the wife holding a pitchfork and using it to damage Ke.’s vehicle.

[15] The husband agreed during the motion to list Slanted Road for sale. He agreed to provide the wife with names of three listing agents and for her to choose one of his choices. He also agreed that the property could be listed for sale immediately.

The Wife’s Position

[16] The wife argues that the subsections of s.24(3) that are applicable to this case are (c) the financial position of both spouses; (e) the availability of other suitable and affordable accommodation; and (f) any violence committed by a spouse against the other spouse or the children. Specifically, the wife submits that,

a. She is currently receiving disability insurance income of $900 a month. She deposes that she has no other source of income, no ability to work and does not anticipate being able to work in the future. She is residing with the parties’ adult son and does not pay rent. She argues that she cannot afford to rent alternate accommodation. Comparatively, the husband is employed full-time as a police officer. According to the wife, the husband earns at least $149,000 a year. This was not disputed by the husband. Accordingly, he has financial ability to rent alternative accommodation.

b. The parties jointly own a rental investment property located at 102 Central Park Blvd. North in Oshawa, which is currently tenanted to a third party. The wife cannot afford to carry the costs of this rental property without the rental income. She claims that the rental income does not cover the costs of the rental property, in any event. The husband, on the other hand, has the financial ability to maintain the costs of the rental property on his own with his salary. He can request that the tenants vacate the property and reside in this alternative, available accommodation and pay the carrying costs.

c. The wife denies committing any family violence toward the husband or Ke. She claims that the husband has committed family violence toward her. In any case, she argues that the existence of family violence under s.24(3) of the Family Law Act is only relevant where the matrimonial home cannot be sold and since the parties have agreed it should be sold, the issue of family violence is not relevant.

[17] Further, the wife argues that she is the only person who has knowledge of and the skills to look after the special needs of the four horses and donkey stabled in the barn at the matrimonial home. Each horse has a specific plan of care as set out below:

a. Timmis: Timmis was acquired from the Toronto Police Force once he was retired from active duty. He has a chronic wound that occurred with an injury in which he sustained a fractured pelvis. During his time with the police, his leg was injured after a rioter wrapped a baseball bat in barbwire and bashed him. He was in a sling for a year, and his leg never fully recovered. He has a cracked shoulder, and he also suffers from a neurologic condition, which requires medication. In May 2023, Timmis sustained another right front leg tendon injury which has responded well to intensive icing and poulticing care along with carefully monitored rest, quiet paddock turn out and anti-inflammatory medication. To care for Timmis, the wife engages in a 5-day pattern of wrapping his leg in an ice boot, poulticing him, wrapping his leg in a thermal wrap, and repeating;

b. Bill: The wife rescued Bill from a meat yard 13-14 years ago. He suffers from chronic sarcoids, which are a locally invasive skin tumour. Bill has been treated aggressively for sarcoids with a vaccine for sarcoids, injectable biologics and had his right eye enucleated as the sarcoid had irreparably damaged the eye. The wife monitors Bill closely for new cancerous growths and has managed to keep him healthy using this diligent approach, which includes several daily supplements that the wife administers to him;

c. Finley: Finley has been diagnosed with arthritis, muscle pain and a quarter crack. He is doing well under her care but requires frequent injections directly into his bones. Finley also has cracks in his hooves that often result in bacterial infections. To monitor this, the wife has to glaze his hooves in an anti-bacterial paste, and monitor him for signs of infection;

d. Fancy: Fancy is a former competition horse. She is 21-years-old, and arthritic. She requires several supplements, which the wife manages; and

e. Zeke: Zeke is a donkey, and his dietary needs are highly specific. The wife manages Zeke’s diet to maintain his health.

The Husband’s Position

[18] The husband argues that there is no legal basis for the wife to be granted exclusive possession of Slanted Road. The fact that there are five large farm animals that must be cared for, is not one of the criteria listed in s.24(3) of the Family Law Act that the Court is to consider when determining whether a spouse should be granted exclusive possession of the matrimonial home. Further, the husband argues that the animals are being cared for daily by him, Ke. and a third party who the wife initially hired. In addition, the husband argues that the wife did not exclusively care for the animals during the marriage. Instead, he claims she was “constantly drunk and unable to care for the animals” and hired help. The husband hired a veterinarian, named Dr. Rebecca Wilson, to inspect the animals who advised she has no concerns and “the animals are fit, well and friendly, with no signs of mistreatment. The food is high quality, the barn is clean and tidy.”

[19] In terms of the criteria set out in s.24(3) of the Family Law Act, the husband agrees with the wife that the s.24(3) criteria applicable to this case are (c) the financial position of both spouses; (e) the availability of other suitable and affordable accommodation; and (f) any violence committed by a spouse against the other spouse or the children. However, he also argues that (a) the best interests of Ke. is relevant. Specifically, he sets out as follows:

a. The Court should consider Ke.’s best interests, even though she is an adult child because she lives at the matrimonial home with the husband and she is fearful of the wife. Ke. has been attacked by the wife, suffered bruises, and watched the wife damage her truck with a pitchfork. The husband attached a video as an Exhibit to his affidavit showing the wife using a pitchfork to damage the truck, and other videos which show screaming between the wife, husband and Ke. Further, the husband attached pictures of Ke.’s arms with bruises, claiming they were inflicted by the wife.

b. The husband is struggling financially and does not have the financial resources to move to another home. He argues that he made inquiries about obtaining further financing and was denied because he has a secondary mortgage. He argues the wife is in a far better financial position than him because she sold the building out of which she operated her legal practice and has the net proceeds of sale from this building. Further, the husband submits that the wife did not disclose the amount of her rental income she earns for the Oshawa property.

c. The husband argues that he cannot take on further debt and obtain alternative accommodation. He submits that the wife is already living with Ki. and if she wants to move from there, she can use her capital to find and pay for alternative accommodation. Further, he argues that she could ask one of the tenants in their Oshawa property to move out and live in their investment property.

d. The husband submits that the wife committed acts of family violence against him and Ke. He argues that the wife threw a medicine bottle at him, she bruised Ke., and she threatened both of their lives. The husband swears that he and Ke. live in fear of the wife and that the wife ought not to be permitted to return to the matrimonial home for the safety and wellbeing of him and Ke.

Analysis

[20] Now that the parties have agreed to list Slanted Road for sale, any order for exclusive possession will only be operative pending the release of this Endorsement until the closing of the sale of the property.

[21] Using the criteria set out in s.24(3) of the Family Law Act, I find that the husband is in a better financial position than is the wife, given that he is earning a regular income and is able to meet the expenses of the matrimonial home. However, the wife is currently residing, rent-free, with Ki. which is not an ideal situation but can be managed for a short-period of time. I also find that there is alternative accommodation for both parties at their rental investment property. However, it does not make financial sense for the husband to move into the rental property and have to pay operating costs associated with both the Oshawa property and the matrimonial home, which is what will need to happen until the matrimonial home is sold and the transaction closes. In these circumstances, it makes reasonable sense for the husband to have exclusive possession of Slanted Road from the date of the release of this Endorsement to and including January 31, 2024 as it will cause the least disruption for the family.

[22] The husband has possession of the property now and Ke. is in the midst of completing her police course and residing between Aylmer and Slanted Road for the next six weeks. Although Ke. is not a “child of the marriage” as defined in the Divorce Act, she is residing at Slanted Road and would be displaced if she had to move prior to the completion of her course. Further, the husband is currently paying all of the household expenses, including the mortgage, property taxes and insurance and he shall continue to do so until further court order or agreement of the parties. The husband’s period of exclusive possession of Slanted Road shall terminate on January 31, 2024 at 6:00 p.m. Thereafter, the wife shall have exclusive possession of Slanted Road until the home is sold and the transaction closes.

[23] The period of time between now and January 31, 2024, will allow the husband to find suitable alternative accommodation and allow Ke. to make some decisions about where she will reside. Commencing on February 1, 2024, the wife shall have exclusive possession of the matrimonial home until the home is sold and the transaction closes. During the wife’s period of exclusive possession of the matrimonial home, the husband shall maintain the financial status quo by paying all of the matrimonial home expenses pending further agreement of the parties or court order.

Issue Two: How should the horses and donkey be cared for during the husband’s period of exclusive possession?

[24] That then takes me to how the four horses and donkey should be cared for during the husband’s period of exclusive possession of Slanted Road. I am not persuaded that the new veterinarian hired by the husband has any knowledge of the special needs associated with the four horses. As such, her opinion as to how these horses are doing is not relevant. The husband could have asked Dr. Wilson to write a note or report as to each of the horses. He did not do so. Further, the husband could have, and should have in my view, reached out to the veterinarians who have looked after the horses and are aware of their conditions and the required treatment and care. He did not do so.

[25] I share the wife’s concerns that the horses and donkey may not being looked after properly. It is hard to understand who is caring for these horses, given the extensive care needs they have, when the husband has 12-hour shifts and is gone all day or all night, and Ke. is away at the Police academy Monday to Friday. There is no evidence before the Court that the 18-year old helper at the farm, Kassidy, has the requisite knowledge to care for the horses needs on a daily basis. Further, there is no evidence as to how often Kassidy works at the barn.

[26] Accordingly, I order the husband to call Dr. Salmon and ask her to attend at the farm and inspect the four horses, Timmis, Bill, Finley and Fancy and to ensure that they are being cared for suitably and doing well. Further, the husband shall pay for the cost of Dr. Salmon to attend at the farm and to teach and ensure that Kassidy, the 18-year-old working with the horses, is properly trained to provide the daily care each of the horses need.

Costs

[27] The consent order of Sharma, J., dated September 26, 2023, left the issue of costs to be determined by the motion judge.

[28] Given that I have already determined that the husband willfully breached the consent order, dated September 26, 2023, and did not take the appropriate steps to address his concerns thereafter, I find that his conduct was unreasonable. As such, I order him to pay the wife costs thrown away at the conference before Sharma, J. In addition, he is to deliver the wife’s two laptop computers to her counsel’s office within 24 hours of the release of this Endorsement.

ORDER

[29] This Court makes the following order:

a. The husband shall have exclusive possession of the matrimonial home located at 207 Slanted Road, Reaboro, ON K0L 2X0 from the date of the release of this Endorsement until January 31, 2024 at 6:00 p.m.

b. During the husband’s period of exclusive possession of the matrimonial home he shall pay for 100% of the operating costs associated with the home, including the mortgage payments, house insurance, barn insurance, animal insurance and property taxes.

c. The husband shall immediately reach out to Dr. Salmon, the veterinarian who regularly looks after the four horses and donkey at the farm. The husband shall make an appointment for Dr. Salmon to come to the farm and inspect the animals to ensure that the animals are being properly cared for and looked after. The husband shall ask Dr. Salmon to meet with Kassidy to teach her, as well as him, the specific care and treatment needed to ensure that each of the animals are being properly cared for. The husband shall solely pay the cost of Dr. Salmon’s invoice associated with this subparagraph.

d. The husband shall provide the wife, through counsel, with three names of proposed listing agents to list the matrimonial home for sale by October 20, 2023 at 12:00 p.m. The wife shall choose one of the three proposed names to act as the listing agent for the matrimonial home by October 24, 2023. The parties shall, thereafter, immediately list the matrimonial home for sale. The parties shall follow the advice of the listing agent in terms of the listing price, the suggested closing date and what is needed to ready the home for sale. If the listing agent is of the opinion that renovations are needed to the indoor arena at the barn and/or any other part of the matrimonial home, the parties shall follow that advice. The wife shall retain the necessary contractors and third parties to conduct the renovation which shall be overseen by an independent project manager. The wife shall bear the costs of the renovation upfront, to be reapportioned at trial. If the husband, in any way, interferes with these renovations or causes delay to these renovations, the wife is at liberty to bring a motion on short notice to the husband to enforce this aspect of my order.

e. The wife shall have exclusive possession of the matrimonial home commencing on February 1, 2024 at 7:00 a.m., until the matrimonial home has sold and the transaction closes. During the period of the wife’s exclusive possession of the matrimonial home, the husband shall continue to pay all expenses associated with the matrimonial home pending further court order of agreement of the parties.

f. The husband shall deliver the wife’s two laptop computers to her counsel’s office within 24 hours, located at Lerners LLP, 225 King Street West, Suite 1500, Toronto ON M5V 3M2.

g. The husband shall pay the costs of the conference before Sharma, J. which were thrown away by his breach of the consent order. The parties shall each serve and file his/her costs submissions of not more than two pages, not including a Bill of Costs, within seven days of the release of this Endorsement. Each party shall prepare a one page response to the other party’s cost submissions to be served and filed within five days of receiving the other party’s costs submissions. These costs submissions are to be for the costs of preparing for and attending at court on September 26, 2023.

h. The husband shall deliver his Answer and/or Claim and sworn financial statement within 30 days.

i. The parties shall attend a case conference on February 9, 2024 at 10:00 a.m.

j. Success was divided at this motion. The parties should endeavour to resolve the issue of costs by way of agreement. If they cannot do so, then each party shall make costs submissions of no more than 3 pages within 21 days of the release of this Endorsement and responding costs submissions of no more than 1 page within 7 days of being served with his/her costs submissions. This does not include Bills of Costs or Offers to Settle.

M. Kraft, J. Released: October 18, 2023