COURT FILE NO.: FC-23-543 DATE: 2024/04/08 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

KATHY CHIASSON Applicant – and – MARTIN MALLET Respondent

Counsel: Laura Hunt, for the Applicant No one appearing for the Respondent

HEARD: February 29, 2024 and March 18 and 22, 2024 (By videoconference)

ENDORSEMENT

(Motion Without Notice)

Corthorn J.

Introduction

[1] The parties co-habited for seventeen years – from 2004 until they separated in August 2021; they never married. The parties have two sons. The boys are now eight and thirteen years old.

[2] At the date of separation, the parties and the children were living in a home owned by the parties as joint tenants. The municipal address for the home and property is 1320 Paardeburgh Avenue, in the City of Ottawa (“the Property”).

[3] On the date of separation, the applicant fled with the children to New Brunswick. The applicant and the children have remained in New Brunswick since August 2021. The applicant plans to continue to reside in New Brunswick with the children.

[4] Subsequent to the date of separation, the respondent continued to reside at the Property. He has done so (a) other than during brief periods of incarceration, and (b) without contributing to any expenses associated with the ownership and maintenance of the Property.

[5] In October 2023, the court heard and granted the applicant’s motion for an order for partition and sale of the Property and for a restraining order: Chiasson v. Mallet, 2023 ONSC 6898 (“the Ruling”). In summary, the order made at para. 84 of the Ruling provides that,

• The Property is to be partitioned and sold;
• The applicant has sole authority regarding the steps regarding the listing and sale the Property;
• The respondent shall co-operate in the listing and sale of the Property;
• The respondent is restrained from communicating with or contacting the applicant and from being within 200 metres of the applicant, including when she is at the Property to facilitate its listing and sale;
• The respondent is restrained from being within 200 metres of the Property when any individual is attending at the Property to facilitate its listing and sale; and
• If the respondent fails to comply with one or more terms of the order, then the applicant is entitled to bring a motion, in writing and on an urgent basis, for additional relief, including an order for exclusive possession of the Property.

[6] The respondent failed to co-operate in the preparation of the Property for listing and sale. The applicant brought a motion for exclusive possession of the Property. That motion was heard in writing in January 2024. The applicant was granted exclusive possession of the Property; the order in that regard is police enforceable: Chiasson v. Mallet, 2024 ONSC 699.

The Respondent Continues to Refuse to Co-operate

[7] After obtaining the order for exclusive possession, the applicant gave the respondent until February 4, 2024 to gather his belongings and vacate the Property. The respondent did not leave by the deadline imposed. He continues to reside at the Property.

[8] Based on the uncontested evidence in the applicant’s affidavit sworn on February 22, 2024, I find that, on more than one occasion, the respondent refused to cooperate when the realtor attended the Property. For example, on February 20, 2024, the realtor attended the Property with a locksmith to effect a change of the locks (in accordance with a previous order of the court). The respondent refused to leave; the locks were not changed.

[9] The realtor and the applicant, through her counsel, have, without success, attempted to obtain the assistance of the Ottawa Police Service (“OPS”) to enforce prior orders made. The applicant’s realtor and the applicant’s counsel describe the OPS as unable to assist without specific direction from the court.

[10] As a result of the respondent’s failure to co-operate, the applicant seeks (a) amendments to several terms of the existing orders, and (b) additional relief.

[11] I will deal with each element of the relief sought at this time.

a) Vacant Exclusive Possession of the Property

[12] The applicant requests that the January 31, 2024 order, pursuant to which she is granted exclusive possession of the Property, be amended to reflect that she is granted “vacant exclusive possession” (emphasis added). The respondent’s lack of co-operation to date reflects his lack of appreciation and respect for the terms of the court order. The January 31, 2024 order shall be amended as requested.

[13] The applicant’s counsel and the applicant’s realtor have, from time to time, been made aware of individuals, other than Mr. Mallet, who may be staying at the Property. The evidence supports a finding that none of those individuals is anything other than a short-term guest, or an individual staying in the home with the respondent’s consent. The latter individual is not, however, a tenant for the purpose of the Residential Tenancies Act, 2006, S.O. 2006, c. 17.

[14] In summary, nothing about the other individuals staying at the Property precludes the applicant from obtaining vacant exclusive possession of the Property.

b) Assistance from the Ottawa Police Service

[15] The applicant requests an order permitting the OPS to (a) use physical force, as may be necessary, to remove the respondent from the Property, and (b) arrest the respondent, without a warrant, if he fails to comply with the terms of the any of the orders relating to the partition and sale of the Property.

[16] The applicant relies on the decision of Dunn J. in Vandoodewaard v. Vandoodewaard, 2011 ONSC 554. The history of the orders made in that matter is similar to the history of the orders made in the matter before this court. For example, in Vandoodewaard, the applicant was granted exclusive possession of the subject property, “with police enforcement allowing the applicant to take exclusive possession of the property”: at para. 16.

[17] Also at para. 16, Dunn J. highlighted that (a) the applicant took possession of the property, after being refused entry by the respondent, and (b) the “order was then amended to provide for forced entry.”

[18] The decision in Vandoodewaard does not include a description of the circumstances upon which the applicant relied over time in support of her request for an order providing for forced entry. It is unclear why an order providing for forced entry was required given that the applicant is said to have been able to gain possession of the property.

[19] In the matter before this court, the applicant requests the following relief:

2. In respect of paragraph 2 of the order of the Honourable Madam Justice Corthorn, dated January 31, 2024, the Ottawa Police Service or other police force, at anytime during the day, may use all such physical force necessary to breach the entry of the Property, including breaking in the door to gain entry to the premises, whether or not the respondent, Martin Mallet, is at the Property.
3. The Ottawa Police Service or other police force are at liberty to arrest the respondent without a warrant if he acts in a manner that is in contravention of this order and the other of the Honourable Madam Justice Corthorn, dated January 31, 2024, granting the applicant exclusive possession of the Property.

[20] Based on the evidence and case authorities before the court at this time, I am not prepared to make an order directing the OPS as to (a) whether they are entitled to use physical force, (b) if so, the level of force they are entitled to use, and (c) steps the OPS may take without a warrant.

[21] Instead, the order made at the conclusion of this endorsement includes a term permitting the applicant to return to the court on an urgent basis, and without notice to the respondent, in the event of a lack of cooperation or obstruction by the respondent to any orders made related to the listing and sale of the Property. The applicant would, on such a motion, be entitled to request additional relief intended to facilitate the delivery to her of vacant possession, the listing, and the sale of the Property. As an example, the applicant may wish to consider bringing a motion for an order finding the respondent in contempt of one or more court orders. As another example, the applicant may bring a motion for leave to issue a writ of possession and for the assistance of the sheriff to enforce the writ.

c) Amending the Restraining Order

[22] The orders previously made include restraining orders against the respondent. Paragraph 11 of the December 2023 order prohibits the respondent from being within 200 metres of any place the respondent knows the applicant to be (including when the applicant is at the Property).

[23] Paragraph 12 of the same order provides that the respondent is not to be within 200 metres of the Property when anyone attends at the Property to facilitate its listing and sale. The applicant now requests an order that the respondent be prohibited from being with 200 metres of the Property – period.

[24] Based on the respondent’s persisting lack of cooperation, failure to comply with court orders, and failure to vacate the Property, it is reasonable to amend the December 2023 restraining order as requested by the applicant.

d) Service of Documents

[25] The applicant requests relief regarding the method of service of this endorsement and the related order on the respondent. The request for such relief is reasonable; the relief requested is granted.

e) Costs

[26] The applicant requests her costs of the motion, on the same terms as ordered on previous motions – to be determined (i.e., scale and quantum) by the trial judge following the uncontested trial to which the applicant is entitled to proceed.

[27] The applicant continues to be required to return to court, solely as a result of the respondent’s failure to cooperate in the listing and sale of the Property and to comply with terms of one or more court orders. The expenses incurred for repeatedly having to return to court should not be borne by the applicant. She is once again granted her costs of the motion.

Disposition

[28] For the reasons given, the court makes the following order:

1. Paragraph 1 of the order of Justice Corthorn dated January 31, 2024, shall be amended to read as follows: The applicant shall have vacant exclusive possession of the property known municipally as 1320 Paardeburgh Avenue, in the City of Ottawa (hereinafter referred to as “the Property”).

2. Paragraph 12 of the order of Justice Corthorn dated December 6, 2023, shall be amended to read as follows: The respondent shall not be within 200 metres of the Property.

3. The applicant shall forthwith serve a copy of this order, and the court’s endorsement dated April 8, 2024, on the respondent by (a) sending same by regular mail addressed to the respondent at the Property and (b) leaving copies of the documents in a sealed envelope, addressed to the respondent, at the Property. Service of the order shall be effective on the earlier of the fifth day after the documents are mailed to the respondent or are left in a sealed envelope at the Property.

4. The applicant is granted leave to return to the court on an urgent basis, if necessary because of the continuing lack of co-operation from or obstruction by the respondent regarding the listing and sale of the Property, including the respondent’s failure to comply with orders made in this proceeding, for any additional relief that may be needed to help facilitate the sale, as soon as possible, of the Property.

5. The respondent shall pay to the applicant her costs of the motion, the amount of and scale upon which said costs are payable are reserved to the trial judge and to be determined following the uncontested trial.

[29] The applicant is not required to obtain approval from the respondent as to the form and content of the order to be issued and entered. The applicant shall file a draft order (in Word) with the court, in the usual manner, and, when doing so, specify that the order is to be brought to my attention for signature.

The Balance of the Proceeding

[30] I continue to remain seized of this matter solely for the purpose of the uncontested trial referred to at para. 88 of the Ruling. If my schedule is such that it precludes me from presiding over the uncontested trial in a timely manner, then the trial may proceed before another judge of this court.

[31] I am no longer seized of any other aspect of the matter. The applicant may bring any further motions or proceed with any additional conferences before me or before any judge of this court.

Madam Justice Sylvia Corthorn Released: April 8, 2024