Court File and Parties

COURT FILE NO.: FS-23-249-00 DATE: 2024-07-31

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Nicholas Kolobutin v. Michelle Kolobutin

HEARD: July 29, 2024

BEFORE: Fitzpatrick J.

COUNSEL: Nicholas Kolobutin, representing himself Michelle Kolobutin representing herself

Endorsement on Motion

[1] Each self-represented party in this matter brings motions in this high conflict family law case.

[2] I shall refer to the parties hereafter by their first names, Nick and Michelle respectively.

[3] Nick seeks the following orders;

Parenting time

1. Pursuant to section 16 of the Divorce Act, a temporary Order that the parties have equal parenting time with the children, namely, Knox Kolobutin, (Knox) born February 19, 2013, Simon Kolobutin, (Simon) born September 24, 2014, and Briar Kolobutin, (Briar) born September 24, 2014, (hereinafter, also collectively referred to as, "the Children"), as follows: a) Week 1: Nick shall have parenting time with the Children from Friday at 3 p.m. until the following Friday at 3 p.m. and each alternating week thereafter. b) Week 2: Michelle shall have parenting time from Friday at 3 p.m. until the following Friday at 3 p.m. each alternating week thereafter.

Travel

• The parties are permitted to travel outside of Ontario but within Canada with the Children during their parenting time.
• The party intending on travelling with the Children within Canada during their parenting time, shall provide the other party with at least 14 days' written notice.
• The party intending on travelling with the Children outside of Canada during their parenting time shall obtain the written consent of the other party and health insurance for the Children. Consent shall not be unreasonably withheld.
• Notice with respect to international travel shall be provided to the other party in writing at least 30 days prior to the departure date.
• The party travelling with the Children shall provide the other party with their contact information, travel/flight itinerary and accommodation details (address/contact), at least 7 days before the departure date.

Matrimonial Home

• Pursuant to the Partition Act, R.S.O. 1990, c.P.4, AS AMENDED, an Order that the matrimonial home jointly owned by the parties, municipally described as, 161 Parsons Avenue, Thunder Bay, Ontario (hereinafter, referred to as, 'the Matrimonial Home') shall be listed for sale forthwith,
• In respect of the sale the parties utilize one of the following Realtors for the sale of the Matrimonial Home: a) Kris McGowen - Royal LePage Lannon Realty b) Michael Veneziale - Signature North Realty Inc.; or; c) Melissa Thompson - Royal LePage Lannon Realty
• The parties shall list the property for a price recommended by the Realtor and make adjustments to the sale price and terms as recommended by the realtor.
• Upon sale the net proceeds of the sale of the Matrimonial Home be held in trust or paid into court, pending agreement of the parties or a Court order for distribution.

[4] Michelle seeks an order that a request be made to the Office of the Children’s Lawyer (OCL) further to section 112 of the Courts of Justice Act for an investigation related to decision-making responsibility, parenting time or contact with respect to the Children and/or that the OCL meet with the Children to determine their views and preferences with respect to matters that may include decision-making responsibility, parenting time or contact.

Background

[5] Nick and Michelle were married on June 21, 2008 and separated on July 22, 2022. They have three children, Knox, Simon and Briar (the Children).

[6] Nick and Michelle jointly own what was their matrimonial home located at 161 Parsons Avenue, Thunder Bay (“the matrimonial home”). Michelle has paid the mortgage, property taxes and all carrying costs for the matrimonial home since Nick moved out in September 2022.

[7] Since separation Nick has had parenting time with the Children as follows;

Week 1 - Thursday at 9 AM to Friday at 8 PM Week 2 - Thursday at 9 AM to Sunday at 8 PM

The Motions

[8] The material filed in the matter demonstrates that this matter is one of high conflict. Apparently both parties have had counsel involved. Attempts have been made to settle the matter to no avail. The Children’s Aid Society has been involved with the family and the file has been recently closed with no action on the part of the Society. Evidence of this high conflict are the affidavits filed by both parties. The affidavits are filled with vitriol, bitterness, irrelevant accusations, hearsay and display an overwhelming focus on the needs of the individual parents as opposed to the best interests of the Children. The affidavits filed by Nick by unrelated observers were unhelpful and self serving.

[9] Both parents openly acknowledge difficulties in communicating and co-parenting the Children. Both parents submitted texts and screen shots of situations designed to throw the other parent in a poor light. Both parents allege abusive behaviour by the other. There has been conflict over travel with the Children, mostly because Michelle did not allow Nick to have the Children’s passports which have now expired.

[10] Michelle was directed by an order of Pierce J. dated July 8, 2024, to apply to renew the passports of the Children by July 29, 2024. Michelle claims she was unable to complete the application as the government form required provision of a court order or a separation agreement. I intend to provide an order remedying that circumstance so the passport applications can be completed.

[11] Nick’s material and his oral submissions focused on his rights, his parenting time and Michelle’s disrespect and active interference with his relationship with the Children. Nick made frequent accusations that the Children have been unduly influenced by Michelle directed solely at cutting off their relationship with him. Nick alleged this has particularly damaged his relationship with Briar.

[12] Michelle’s material openly disclosed how she has been involving the Children in this ongoing dispute. The language of her affidavit and her submissions frequently referenced “what the children say they want” and how “they want to be here with me” and how Nick’s behaviour is done in bad faith and “leads the children and I to mistrust” Nick. She states, “the children ask me on a regular basis for reassurance that this schedule not be changed to increase their time with the Applicant (Nick)”. Her submissions focused on her abilities to parent the Children as a well-oiled machine for which Nick has no ability to contribute.

[13] Michelle’s material provides a further litany of occasions of alleged bad behaviour by Nick, dating back to the early days of the parties’ marriage. Michelle has been actively video-taping interactions with Nick for use in these proceedings. It was not clear from the material if the video- taping was done surreptitiously.

[14] Both parties have re-partnered and their material describes how these new relationships are allegedly interfering with the development of the Children.

[15] Both parents acknowledge the Children are doing well in school, have good friends and are actively and productively enjoying numerous extra-curricular activities.

[16] The following is an outline of the issues before the Court on this motion and my disposition of these issues.

Parenting time

[17] I find that the “evidence” such as it was on these motions was unhelpful to allow the Court to determine on any reasonable basis whether Nick’s proposed change in parenting time or the existing status quo arrangement is in fact in the best interest of the Children. I am concerned that the evidence and submissions of Michelle reveal that an improper degree of involving the Children in adult matters has been committed by her since separation. Nick’s material and submissions on the other had exudes a dogmatic and unyielding focus on his rights, and his needs, as opposed to those of the Children.

[18] The volume of allegations and counter allegations of bad behaviour allegedly effecting the Children and the opposing party were impossible to reconcile in a motion context. For whatever reason, the parties decided to proceed this way. They also decided to place a variety of issues, including a request to have the OCL become involved and a request for sale of the matrimonial home in to a two-hour motion that featured six affidavits filed on behalf of Nick and one by Michelle, which apparently differed from the one that she originally served on Nick.

[19] In light of these conflicting positions, I am hesitant to order any significant changes to the status quo parenting time arrangement on a temporary basis absent some input from the OCL which I will address below. However, in the short term, I agree with Nick that his proposal for an extended period of parenting time from August 17 to 25, 2024 for him would be in the best interests of the Children as it would allow him to take them on a trip to Southern Ontario to see his extended family. Michelle’s extended family lives in this region and it appears the Children benefit from healthy contact with their uncles, aunts and cousins. I am of the view that Nick should have that opportunity to visit family members of his choosing with the Children as well. I would extend his time to commence on August 16, 2024, at 8 pm and to conclude on August 26, 2024 at 9 am to allow him to make reasonable arrangements to fly the Children and himself to Southern Ontario as he indicates he wishes to do.

[20] I appreciate Briar has encountered some difficultly flying recently. It involved her ears popping and being frightened by some turbulence on a Porter flight a year ago. The Court appreciates this can happen and can be traumatic for anyone. At the same time, Michelle admits this is not a “forever problem”. In my view, it would be best for Briar if she can be convinced to “return to the air” sooner rather than later given this family lives in Thunder Bay and travel outside the region by air is more usual than in other parts of the Province given the reality of time and distance. I appreciate we are dealing with short notice, and I was unsure from the material if the parties have a family doctor. However, if some medical assurance could be obtained that Briar is clear to fly, then I can see no reason why Michelle would not encourage her to go with her brothers and father to visit her grandparents and extended in Oshawa in the next couple of weeks.

[21] Other than that August visit, I am not prepared to grant the temporary relief Nick requests regarding parenting time. This is without prejudice for this claim to be renewed at trial.

[22] Further I am going to order that from now on neither parent shall disparage or denigrate the other parent in any manner that may come to the children’s attention, and neither parent shall permit any other person to disparage or denigrate the other parent in a manner that might come to the children’s attention. This should be something that need not be made subject of an express order. However, in this case, I hope both parties will abide by this in future. Also, it is not designed to be used as a platform to lay traps for the other in the hopes of gaining advantage in future proceedings. It is a direction that is in the best interests of the Children.

Travel

[23] The genesis of this issue on Nick’s part appears to stem from frustration he has had in the past with respect to Michelle’s travel with the Children. He asserts she freely travels with them while taking steps to actively prevent him doing the same. The issue of the passports has been dealt with by the order of Pierce J. dated July 8, 2024. Michelle will now submit a copy of the order set out at the end of this endorsement along with the passport application for the Children. I trust this should allow Passport Canada to issue the Children their passports if the application is otherwise sound. The order of Pierce J. has directed that in future the passports travel with the Children. In future, lack of a passport should not be a weapon to create further conflict in this family.

[24] During submissions both parties seemed amenable to the Children being able to travel as much as was economically and academically possible with either parent. The issue appeared to be one of notice. Accordingly, I will make an order formalizing the right of the parents to travel with the Children so long as 24 hours email notice is provided to the other parent together with particulars of the travel itinerary.

Sale of the Matrimonial Home

[25] Apparently, the parties have just recently begun to exchange offers concerning Nick’s request to have Michelle purchase his interest. Nick had proposed Michelle buy him out as early as November 2023. I was concerned that the valuation evidence relied upon by both parties, which consisted of an online mortgage evaluation tool from RBC called “RBC Home Value Estimator” does not give the Court the best evidence of value for the property. I agree with Nick’s submission that the best evidence of value consists of a market sale. I also recognize that prima facie Nick has a right to require partition and sale of the matrimonial home. That said, there is a considerable amount of jurisprudence on when and how a sale is to occur in the course of an ongoing family law dispute where children have been involved.

[26] In 2020, Pazaratz J. helpfully summarized the applicable legal principles in the family law context where an order for sale of a matrimonial home comes before a trial at paragraph 16 of the Dhaliwal v. Dhaliwal decision (2020 ONSC 3971). There are nineteen different principles set out at paragraph 16 of Dhaliwal. The final principle is noted as “The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage?”

[27] In my view, the primary focus of this matter at the moment should be getting to some satisfactory resolution on parenting time. That is not going to happen in the foreseeable future absent some substantial changes in both the attitude and position of each parent toward the other. I have no idea from the materials what the respective parties’ positions are concerning equalization. I expect the house value will play an important role in that calculation. Also, ordering a sale at any time would definitely impact the Children. Where they are going to live if the matrimonial home gets sold was not addressed in any materials placed before the Court. Nick’s answer was to suggest a delay of the sale for two months. I did not find Nick’s responses to my concerns in that regard persuasive. However I agree the issue has to be dealt with sooner rather than later. Unfortunately the material filed on this motion was insufficient to allow me to do so at this time.

[28] Accordingly, I am going to adjourn the part of the motion as it relates to the request for an order for immediate partition and sale until after the OCL gives its decision about whether or not it is going to become involved in this matter and if it does become involved until after they have reported on their investigation or on their decision concerning counsel for the Children. The matter will be returned before me as I have had the benefit of reviewing the material filed to date.

Order for the OCL

[29] Nick’s opposition to a request for the involvement of the OCL in respect of the Children was based on his concerns about delay and that it would permit the Children to make the ultimate decision on where they are going to live. These concerns are unpersuasive. The parties have been separated for two years. Given how these parties speak about each other in their materials, it seems to me that a quick and easy end to their various disputes is unrealistic.

[30] The Children are not going to be the ultimate arbiters of where they are going to live. If Nick and Michelle cannot work it out, a court will do so following a trial. The views and preferences of the Children are just one piece of the evidentiary puzzle the Court will consider if called upon to adjudicate on that matter.

[31] Also, I am persuaded that Michelle has unduly involved the Children in this dispute. I say this because of the clear and obvious references in her material and in her submissions about how she is constantly telling them about interactions between her and Nick and the alleged opinions of the Children about their circumstances to date. This is something that can be explored if in fact the OCL determines to get involved either in appointing counsel for the Children or preparing a Voice of the Child report or doing whatever other investigations they see fit.

[32] For all these reasons the Court will make a request of the OCL to become involved in this matter.

[33] The Court will prepare the order requesting the involvement of the OCL.

Costs

[34] Nick asked for an order for costs. He suggested a quantum consistent with legal fees he has paid to date which are in the order of $15,000.00. This amount would not be appropriate on a motion such as this, particularly as Nick has decided to represent himself. I appreciate that the first day this motion was to be heard, July 8, 2024, was lost due to Michelle not properly filing materials. This has impacted Nick in that it has cut his timelines for arranging a summer trip with the Children. This delay was unwarranted and should attract an order for costs. However, the results of today are mixed so no costs would be payable by either party for the attendance before me. I am of the view that Michelle should pay costs to Nick for the attendance of July 8, 2024, fixed in the amount of $250.00 inclusive of HST and disbursements on or before August 30, 2024.

Orders

[35] For the above noted reasons. the following orders are to issue:

1. I ask for the assistance of the Office of the Children’s Lawyer (“OCL”) to provide counsel for the Children, and if approved, for a clinician who can complete a report by the end of November, 2024. A copy of the endorsement in support of this request shall be provided to the OCL anticipation of a January 2024 trial. The Thunder Bay court staff shall prepare the necessary materials to effect this request.
2. Nick and Michelle will be provided Intake Forms from the Court and will complete them immediately. Further they shall be available to meet with the OCL as requested.
3. Until further order or agreement of the parties, the parties shall continue to follow the Week 1, Week 2 parenting time format when the Children shall be in Nick’s care as follows; Week 1 - Thursday at 9 AM to Friday at 8 PM Week 2 Thursday at 9 AM to Sunday at 8 PM.
4. Nick shall have additional parenting time with the Children from 8 pm on August 16, 2024 until 9 am on August 26, 204 in order to facilitate a summer vacation visit with the Children at any place that is within Nick’s sole discretion.
5. The question of Christmas access for 2024 may be subject of a further motion that shall not be brought no earlier than November 21, 2024.
6. At all other times the Children shall be parented by Michelle.
7. Upon release of this order neither Nick or Michelle shall disparage or denigrate the other parent in any manner that may come to the children’s attention, and neither parent shall permit any other person to disparage or denigrate the other parent in a manner that might come to the children’s attention.
8. The parties are permitted to travel outside of Ontario with the Children during their parenting time.
9. The party intending on travelling with the Children during their parenting time, shall provide the other party with at least 24 hour’s written notice which can be delivered by email. The itinerary for the Children shall be included in the notice email.
10. The party intending on travelling with the Children during their parenting time shall in their sole discretion obtain the written consent of the other party and health insurance for the Children for the travel at issue. Consent shall not be unreasonably withheld.
11. Nick’s motion to obtain a partition and sale is adjourned to a one hour date before Fitzpatrick J. to ultimately be set by the trial coordinator at Thunder Bay. The date of the return of the motion shall not occur until either the OCL declines to become involved with this matter, or 60 days after any report is given by the OCL in respect of this matter.
12. A copy of this order shall be provided to Passport Canada as evidence of a separation agreement or court order in respect of the parenting time allowed to each of Nick or Michelle.
13. Costs of the July 8, 2024, attendance are fixed in the amount of $250.00 inclusive of HST and disbursements payable by Michelle to Nick on or before August 30, 2024.
14. Neither party shall bring any further motions in this matter without leave of the Court which shall be obtained in a case conference.

“originally signed by”

The Hon. Mr. Justice F.B. Fitzpatrick

DATE: July 31, 2024

COURT FILE NO.: FS-23-249-00 DATE: 2024-07-31 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Kolobutin v. Kolobutin HEARD: July 29, 2024 COUNSEL: self rep, for the Applicant self rep, for the Respondent ENDORSEMENT ON MOTION Fitzpatrick J. DATE: July 31, 2024