Court File and Parties

Court File No.: FS-23-00036919-0000 Date: August 13, 2025 Superior Court of Justice – Ontario

Re: Eva Alise Kalisz, Applicant And: Thomas Agnew Rolfe, Respondent

Before: M. Kraft, J.

Counsel: Heather Hansen, for the Applicant Chelsea Hooper, for the Respondent

Heard: August 7, 2025

Endorsement

Nature of the Motion

[1] Thomas Rolfe ("Tom") seeks an order granting him exclusive possession of the matrimonial home, located at 218 Riverside Drive, Toronto ON and an order that the parties enter into a time-sharing arrangement on two-week rotations with respect to the cottage property located at 124 Jones Road, McKellar, Ontario. Tom also seeks an order that Eva Elise Kalisz ("Eva") vacate the matrimonial home and remove her personal contents and those of her three adult children.

[2] Eva Elise Kalisz ("Eva") opposes the motion sought by Tom. She disputes that the cottage property is a matrimonial home as defined by s.18(1) of the Family Law Act, R.S.O. 1990 c.F.3 ("FLA"). Alternatively, if the Court is inclined to grant Tom exclusive possession of the matrimonial home, she seeks that as a term of that order, she and her children be permitted to reside at the cottage property and that Tom not be permitted to attend there.

Issues to be Decided

[3] I need to decide the following issues:

(a) Should Tom be granted exclusive possession of the matrimonial home?

(b) What order should be made regarding the usage of the cottage property given the dispute about it being a matrimonial home?

Background

[4] The parties were married on June 21, 2014. They separated on December 12, 2022.

[5] Tom is 70 years of age and Eva is 58 years of age.

[6] Tom has three adult children from a prior relationship who reside independently.

[7] Eva has three adult children from a prior relationship who attend post-secondary school outside of Toronto. Eva's three children are ages 18, 22 and 24. According to Eva, the children are financially dependent on her and Tom, and remain children of the marriage as defined in the Divorce Act. The children have resided in the matrimonial home for the last 11 years.

[8] Eva's oldest child lives in Poland. Her middle child attends Dalhousie University and starts an exchange program in Portugal in August 2025, and her youngest child attends Queens University.

[9] Title to the matrimonial home is in Tom's sole name. According to Tom, Eva did not contribute financially to the matrimonial home either before or after the parties' separation. Both parties agree that the Riverside property is a matrimonial home.

[10] The cottage property is in Eva's sole name. There is a secondary cottage on the same property which is rented out. Eva manages the secondary cottage through Cottage Vacations, including managing the listing, communicating with guests, cleaning, and maintenance. Eva submits that she relies on the rental income from the secondary cottage. Eva has received the rental income from the secondary cottage since the separation.

[11] Eva disputes the fact that the cottage property is a matrimonial home. Leading up to the date of separation, she claims that she attended the cottage alone, to manage the rental of the secondary cottage or to work remotely and get away from Tom or that Tom attended the cottage alone. In other words, she disputes that at the time of separation, the cottage property was ordinarily occupied by the parties as their family residence. Alternatively, she argues that if the main cottage is considered a matrimonial home, the secondary cottage is clearly not a matrimonial home as it was used exclusively as a rental property.

[12] Tom submits that the cottage property is also a matrimonial home and was used by the parties and their children throughout the marriage as a family residence. There is a smaller residence on the cottage property which has been rented since 2021 but he argues that the secondary cottage was used by the family when not rented prior to the separation. He seeks a time-sharing arrangements for the cottage property so that each party would have exclusive use of the property on a two-week alternating basis.

[13] Since the separation, three years ago, the parties have resided separate and apart in the matrimonial home. It is agreed that there is tension and conflict in the matrimonial home.

[14] At the time of separation, Eva moved into the basement of the matrimonial home. She has since moved to a bedroom on the second floor of the home, while continuing to occupy the space in the basement.

[15] Tom continues to reside in the master bedroom. Tom has asked Eva to vacate the matrimonial home but she refuses to do so.

[16] There has been tremendous conflict in the matrimonial home since the separation which has increased over the past three years.

[17] In July 2024, Tom learned that Eva was accessing his private, confidential, and privileged information and documents within the matrimonial home. As a result, Tom was forced to bring a motion to address Eva's conduct and access to his information. Specifically, he sought an order that Eva not be permitted to rely on any private or solicitor/client privileged information or documents in this proceeding. Eva did not deny that she accessed and photographed Tom's documents without his knowledge or consent. She claimed that Tom left the documents on the kitchen counter and the briefcase in which they were found was in the bathroom. Tom denies this. Further, Eva argues that while some of the documents she had accessed are solicitor/client privileged, they come within an exception because they are intended to further a criminal purpose. Nakonechny, J. heard the motion on March 13, 2025, and determined that Eva was not entitled to surreptitiously access Tom's private documents and photograph them, and she was not entitled to keep them herself or give copies to her counsel. Further, Eva was ordered not to rely on the documents she obtained without Tom's consent in this or any other litigation involving the two of them and she was ordered not to share or publish any of the documents she obtained surreptitiously with anyone including future legal counsel.

[18] Tom has been very uncomfortable that Eva continues to invade his privacy and is concerned that she is recording his conversations and listening to his private conversations.

[19] Since March 2025, Tom has received air tag detecting alerts when he is in his vehicle and believes that Eva has access to his vehicle location through an air tag. This is not denied by Eva.

[20] Tom has also received alerts indicating that his email passwords have been changed or attempted to be changed. Again, Eva does not deny that she has attempted to access Tom's email.

[21] Tom alleges that Eva and her adult children have caused significant damage to the matrimonial home since separation, as follows:

(a) Failing to notify him of a sewage backup to the furnished basement;

(b) Leaving doors unlocked and storing her adult children's furniture throughout the home preventing rooms from being useable;

(c) Leaving their beds unmade and the rooms in which they occupy messy;

(d) Hosting parties at the matrimonial home and allowing strange men and women to occupy the home without notice to Tom.

[22] Tom is now retired. His income in 2024 was reported to be $145,424 on his income tax return.

[23] Eva works for the Ombudsman of Ontario. In 2024, she earned $157,634 in employment income and $64,082 in gross rental income from the secondary cottage located on the cottage property.

[24] It is agreed that the biological father of Eva's three children continued to pay support for her children during the parties' marriage. Eva argues, however, that Tom stood in loco parentis to her children and provided financially for them. At the time the parties married, Eva's three children were ages 8, 11 and 13. As a result, Eva claims that Tom was highly involved in their lives, including their education, health, and activities inside and outside school. She submits that Tom paid for the majority of her children's expenses including private school tuition and vacations. Tom acknowledges that he paid for Eva's children's private schools fees.

[25] Tom explains that in 2024, Eva consented to an order terminating her children's father's table child support for the three children and specified their obligation to pay for their daughter's post-secondary educational expenses.

[26] Eva argues that post-separation, Tom has not maintained the financial status quo including stopping to pay for groceries, the children's cell phones, trading in Eva's car and purchasing a second car for himself and attempting to interfere with her ability to rent out the secondary cottage. Eva submits that Tom has not paid her any spousal or child support. She submits that if she is forced to vacate the matrimonial home, it will cause her hardship.

Issue One: Should Tom be granted exclusive possession of the matrimonial home?

[27] Both spouses have an equal right to possess the matrimonial home as set out in s.19(1) of the FLA.

[28] Section 24(1) of the FLA gives the court discretion to order exclusive possession of a matrimonial home.

[29] The criteria the court is to consider when exercising its discretion to grant exclusive possession of a matrimonial home is set out in s.24(3) of the FLA and are set out as follows:

(a) the best interests of the children affected;

(b) the possible disruptive effects on the child of a move to other accommodation; and the child's views and preferences, if they can reasonably be ascertained;

(c) any existing orders under Part I (Family Property) and any existing support orders;

(d) the financial position of both spouses;

(e) any written agreement between the parties;

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

(g) any violence committed by a spouse against the other spouse or the children.

[30] The onus is on Tom, as the moving party, to establish that one or more of the six factors listed in s.24(3) are met before the Court grants a temporary order of exclusive possession of the matrimonial home: See Aston v. Matwee, 2015 ONSC 8087, at paras. 39-40.

[31] As I set out in Trotta v. Chung, 2022 ONSC 6465, at paras 30-31:

[30] The case law has provided the following considerations and principles to guide the exercise of its discretion under s. 24(3) of the FLA:

a. Whether the parent who makes the claim for exclusive possession is the primary parent; Menchella v. Menchella, 2012 ONSC 1861, at paras 16-18.

b. Whether the parties have suitable alternate accommodations available; Naccarato v. Naccarato, 2017 ONSC 6641, at para. 13

c. Whether violence or a psychological assault upon the sensibilities of the other spouse to a degree that renders continued sharing of the matrimonial dwelling impractical. Aston v. Matwee, 2015 ONSC 8087, at para. 34; Kutlesa v. Kutlesa 2008 CarswellOnt 1657; and

d. Whether the best interests of a child are paramount in determining an order for exclusive possession: Bortolotto v. Bortolotto, [2002] O.J. No. 2068 (Ont. S.C.J.)

[31] An order for exclusive possession is dramatic and is highly prejudicial to the dispossessed spouse. Such an order should not be made on a motion where there is conflicting evidence that requires findings of credibility that would only be available at trial.

[32] In applying the s.24(3) factors to the facts of this case:

(a) Eva's two younger children are attending post-secondary education outside of Toronto. One is in Halifax and the other is in Kingston, one of which is on an exchange program in Portugal starting in August 2025. Her oldest child lives in Poland. Even if I accept Eva's evidence that her two younger children come home for holidays and breaks and that her older child comes home to visit in between his medical school term in Poland, I do not agree that it would be against their best interests or that it would be overly disruptive to them if Eva has to find alternative accommodation. The children's specific homes in the cities or towns where they reside for school will not be impacted.

(b) There are no existing orders under Part I of the FLA or support orders in this case.

(c) In terms of assessing both parties' financial positions, Tom had more wealth than Eva prior to the marriage. He argues that his business interests have been sold and that he divested a significant portion of his wealth, of approximately $2 million, into building a new luxury cottage being the main cottage. Tom argues that Eva has over $3 million in assets available to her to assist her in securing temporary or final accommodations. She has a full-time employment position earning $157,000 and has received 100% of the rental income from the secondary cottage since the separation. Eva argues that Tom is in a better position financially than she is and, therefore, he is better able to relocate than she is. Tom's sworn financial statement, dated July 31, 2025, lists his net family property at $0, given his significant date of marriage deductions. Further, Tom's reported income in 2024 was less than Eva's income. She is financially able to find alternative accommodation.

(d) There is no written agreement between the parties.

(e) In terms of available alternate accommodation, Tom argues that since the cottage property is in Eva's name, she has alternative accommodation and can easily move there. Eva argues, however, that she requires the secondary cottage as a source of rental income and if she were required to move to the cottage, she would lose this source of income. Eva claims that she does not have the means to secure a new residence if she is forced out of the matrimonial home. Tom disagrees. He submits that Eva could stay in the two-bedroom condo near the matrimonial home that she claims is her "mother's property." According to Tom, Eva purchased the condo and then transferred title into her parents' names for zero consideration. Alternatively, he argues that Eva can reside at either the main cottage or secondary cottage during her designated time there. Eva disputes that she could reside in her mother's condo. Similarly, Tom disputes that he could reside with his adult children and their families.

(f) In terms of considering family violence, Tom alleges that this includes emotional and psychological abuse. Given that Nakonechny, J. has already determined that Eva breached Tom's privacy by accessing his personal, privileged, and confidential information in the matrimonial home and Tom has reason to believe that Eva has placed an air tag in his vehicle, which Eva did not deny, he claims that Eva's actions and his resulting fear and anxiety, meets the threshold of violence under the FLA, thereby justifying an order for exclusive possession. I agree with Tom.

(g) The court in Menchella v Menchella confirmed that the 'violence' contemplated by section 23(4)(f) is not limited to physical abuse, but includes:

"… an injury achieved by words and deeds. The violence in this context must be such that it makes continuation of joint cohabitation in the matrimonial dwelling impractical. Violence in my view includes psychological assault upon the sensibilities of the other spouse to a degree which renders continued sharing of the matrimonial dwelling impractical. Where, as here, the conduct of the husband in written and spoken communication to the wife is calculated to produce and does in fact produce an anxiety state which puts the wife in fear of her husband's behaviour and impinges on her mental and physical health, violence has been done to her equilibrium as surely as if she had been struck by a physical blow."

[33] It is clear on the record before me that there is significant conflict in the home that is causing stress for both Tom and Eva. No doubt it has also caused stress for Eva's children, since she describes Tom sleeping in one of her child's bedrooms and going through her child's things. While Eva has relied on case law which stands for the proposition that "unpleasantness, inconvenience, and even some tension" all of which are inevitable consequences of living separate and apart, is not sufficient since these considerations are not stand-alone factors set out in s.24(3), I am of the view that the building tension in this case has escalated over the past three years such as to have become toxic and no longer tenable.

[34] Further, Eva's conduct in admittedly taking photographs and accessing Tom's privileged documents renders the continued sharing of the matrimonial home impractical. If Eva has placed an air tag in Tom's vehicle and/or is trying to change his passwords to break into his email accounts, this would represent further attempts on her part to surreptitiously access Tom's documents. If Eva is not doing these things, it is not surprising that Tom has concerns in this regard based on her past conduct.

[35] In these circumstances, I am persuaded that Tom should be granted exclusive possession of the matrimonial home and Eva shall give up vacant possession of the matrimonial home within 30 days.

Issue Two: What order should be made regarding the usage of the cottage property given the dispute as to whether the cottage is a matrimonial home?

[36] Eva argues that the cottage is not a matrimonial home as defined in the FLA or, alternatively, that the secondary cottage is not a matrimonial home as it was always rented out.

[37] Determining this issue is one to be left to a trial judge given the conflicting record. If I were to make a determination now as to whether the main cottage or both the main cottage and secondary cottage are matrimonial homes this would be tantamount to summary judgment.

[38] Accordingly, what order should be made regarding the usage of the cottage?

[39] Despite Eva's argument that neither the main cottage or secondary cottage is a matrimonial home, she, herself, asks the court to consider making an order, as a term to an exclusive possession order of the matrimonial home, that she and her children have use of the cottage property and Tom not be permitted to attend there.

[40] Tom has asked for an order for shared use of the cottage property, such that each, he and Eva would have exclusive use of the cottage during their specified time. He asks that such an order be based on an alternating two-week interval. Given Eva's position that the cottage is not a matrimonial home, she argues that Tom has no possessory rights to the cottage property, either the main cottage or the secondary cottage. She opposes a shared usage order and claims that she requires the main cottage as her alternate residence and needs to continue to be able to rent out the secondary cottage as a source of income.

[41] Again, I decline to make a determination as to whether the cottage property is a matrimonial home.

[42] It is not disputed that title to the cottage property is in Eva's name. Tom has made claims to the cottage by way of a resulting and/or constructive trust. His rights to the cottage property will be determined at trial.

[43] Given that title to the cottage is in Eva's name, she has de facto possessory rights to the cottage. However, given that Tom has some historical use of the cottage, it makes sense that an order is made granting him some usage of the cottage property, subject to Eva's schedule. I decline, however, to order a shared usage arrangement as Tom seeks.

Order

[44] This court makes the following temporary order:

(a) The respondent shall have exclusive possession of the matrimonial home and its contents.

(b) The applicant shall have 30 days to give up vacant possession of the matrimonial home.

(c) The applicant shall provide the respondent with a list of her personal effects and those of her adult children and the parties shall endeavour to agree on what the applicant shall remove from the matrimonial home between the release of this Endorsement and the date she gives the respondent vacant possession of the matrimonial home.

(d) The respondent shall be given two, one-week periods of time (non-consecutive) within which he shall be permitted to use the cottage, including one week in August and the second week between the end of August and Thanksgiving weekend. The applicant shall advise the respondent through counsel of the preferred dates she chooses for his two, one-week periods of time at the cottage. During the respondent's scheduled time at the cottage, the applicant shall not be permitted to come to the cottage property.

(e) The applicant shall have exclusive use of the cottage property, both the main cottage and secondary cottage, title to which is in her sole name. The respondent shall not be permitted to use or attend at the cottage property other than through the two one-week periods of time referred to in subparagraph (d) above.

(f) The parties shall endeavour to agree to costs of this motion. If they are unable to do so, the respondent shall serve written costs submissions of no more than three pages, not including a Bill of Costs or Offers to Settle. The applicant shall serve and file written costs submissions of no more than 3 pages, not including a bill of costs or offers to settle within 7 days of being served with the respondent's costs submissions.

M. Kraft, J.

Date: August 13, 2025