Court File and Parties

Court File No.: FS-25-00051252-0000 Date: 2025-09-16 Ontario Superior Court of Justice

Between: Katherine Garland, Applicant – and – Jason Garland, Respondent

Counsel: Lauren Israel, lawyer for the Applicant Kevin Power, lawyer for the Respondent

Heard: September 11, 2025

Diamond J.

Endorsement

Overview

[1] In this recently issued application, the applicant brings a motion on an urgent basis seeking exclusive possession of the matrimonial home located at 36 Megan Avenue, Toronto, Ontario. In response, the respondent served and filed his own cross-motion which he sought to be argued at the same time as the applicant's motion.

[2] It is trite to state that the Family Law Rules require any issue in a proceeding to be conferenced before a motion is brought unless a judge deems the issue urgent and allows it to proceed before the case conference.

[3] As I advised counsel for both parties at the start of the hearing, the applicant did not submit a request to the Family Trial Office for leave to schedule her motion on an urgent basis, which is contrary to the practice of the Toronto Family Court. This practice enables a judge of the Toronto Family Court to review and assess the purported urgency of any motion sought to be scheduled. After such an assessment, the judge may (a) schedule the motion right away if the matter is in fact sufficiently urgent, (b) refer the motion to be addressed in To Be Spoken To Court ("TBST", held every Monday morning), or (c) deem the motion to be not urgent and have it proceed in the regular course.

[4] An attendance in TBST provides both the Court and the parties with a further opportunity to discuss both the alleged urgency and the merits of the motion, sometimes leading to a partial or even full resolution of the motion itself. At the very least, if deemed to be urgent, the motion can be scheduled with input from both parties.

[5] As will be set out in greater detail hereinafter, while the applicant presently finds herself in a somewhat urgent predicament, it is certainly arguable that her current situation was, in part, self-created. As held on numerous occasions in TBST, by definition nothing which is self-created can be urgent, as urgency happens to a party and is not caused by that party.

[6] In any event, the Court heard the applicant's motion seeking exclusive possession of the matrimonial home. The applicant sought no other relief, and failed to address in any substantive way what would happen with the parties' children in terms of a parenting schedule in the event the applicant was granted exclusive possession of the matrimonial home.

[7] The Court also heard (most of) the respondent's cross-motion, as parts of the relief sought by the respondent were relevant to the disposition of the applicant's motion. Specifically, the relief substantially pursued by the respondent at the hearing was an order granting him exclusive possession of the matrimonial home together with an order that (a) the children of the marriage reside with him at the matrimonial home, and (b) the parties adhere to an equal parenting schedule on a week about basis.

Summary of Facts

[8] As with most urgent motions, the Court is faced with a paper record untested by any cross-examination. As such, absent the presence of agreed upon or patently obvious objective facts, it is difficult for the Court to make definitive factual findings at this early stage.

[9] Nevertheless, the Court strives to do its very best in relying on the key facts as presented in the record to do justice between the parties while bearing in mind the best interests of the child(ren). The following is a summary of the salient facts put forth by both parties in their respective motion records.

[10] The parties began their relationship in 2008, and have been married since early November 2011. They have resided in Scarborough, Ontario throughout their relationship. The matrimonial home is owned solely by the respondent.

[11] The parties have two children, B and J who are currently 12 and 9 years of age respectively.

[12] The applicant gave evidence that on July 4, 2025, she left the matrimonial home with both children and fled to her parents' home in New Hamburg, Ontario. The respondent states that he was under the impression that the applicant was taking the children for a weekend visit to see her parents, and the applicant subsequently blindsided him with a telephone call advising that they would not be returning as she was leaving the respondent and ending the marriage.

[13] The respondent claims that he had no advance notice of the applicant's decision, while the applicant raises an alleged lengthy history of controlling behaviour on the part of the respondent together with a history of alleged cocaine and alcohol abuse.

[14] The next day (July 5, 2025), the applicant had the respondent criminally charged with harassment. Those charges relate to a multitude of phone calls made by the respondent to the applicant and are, to the best of this Court's knowledge, still outstanding.

[15] During the summer, the respondent saw his children on 14 separate occasions (although not necessarily together on each occasion). All of that parenting time seems to have been requested of and granted by the applicant. The applicant gave evidence that after those visits with their father, B and J began accusing the applicant of all kinds of terrible acts suggested by the respondent. The matter was then referred to the Children's Aid Society ("CAS"), who interviewed the parties and the children. By late August 2025, CAS advised the parties that they were closing their file.

[16] The applicant advised the respondent in mid-summer 2025 of her expected return to the matrimonial home on August 15, 2025. The respondent refused to leave the home. According to the applicant, the respondent barricaded and locked himself in the matrimonial home, refusing to allow the applicant or the children to enter. The applicant then made a short-term arrangement to stay in Toronto at a friend's place.

[17] It is not in dispute that the applicant has no current income, and was the children's primary caregiver during the marriage. The respondent was the proverbial breadwinner, and his current annual income is approximately $115,000.00. While the respondent points to the applicant being on the verge of receiving an (approximate) $18,000.00 insurance payout, that is admittedly a one time payment and there are no current child and/or spousal support arrangements in place pursuant to any agreement or Court order.

[18] The respondent has not seen his children for approximately three weeks. The applicant's temporary living arrangements are due to end shortly. The respondent gave evidence that despite being an owner of another condominium property, that unit is being rented to a third party and he has no other places to stay at the moment. Both parties are thus seeking exclusive possession of the matrimonial home.

Decision

[19] Neither party requested that the Court impose or consider a nesting arrangement, even though the facts as set out above could arguably justify such a result. As such, while nothing precludes the parties from reconsidering a nesting arrangement in the future, this Court lacks jurisdiction at the moment to make any such order.

[20] Under sections 19 and 24 of the Family Law Act, while both spouses have an equal right to possession of a matrimonial home, the Court may direct that one spouse be given exclusive possession of a matrimonial home for an interim period.

[21] In determining whether to make an order for exclusive possession, section 24(3) of the Family Law Act mandates the Court to consider:

(a) The best interests of the children affected;

(b) Any existing orders under Part I of the Act and any existing support orders or 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.

[22] The Court must, of course, also consider the possible disruptive effects of a move to other accommodations on the children, and, if reasonably ascertainable, the children's views and preferences.

[23] On the record before this Court, the children have resided in two different properties since early July 2025 and it is the children's best interests to have a stable home environment, i.e. in the only matrimonial home they have known. The issue is then which of the parties is to be granted exclusive possession of the matrimonial home and reside there with the children.

[24] As Justice Jarvis held in Naccarato v. Naccarato, 2017 ONSC 6641:

"It is axiomatic that any order for possession of the matrimonial home should focus on the children's well-being and stability and remove them as much as possible from their parents' conflict. Perpetuating a conflict-filled environment cannot be best for children. The court must be cautious though that allegations of conflict are not made on specious grounds or purposed to misrepresent the facts so as to enable a party to 'win'."

[25] The criminal charges are still pending, but the applicant has produced phone records showing an inordinate amount of phone calls made by the respondent to the applicant over a very short time. Whether that constitutes criminal harassment has yet to be determined. As such, while violence committed by a spouse is always a relevant consideration under section 24(3) of the Family Law Act, I cannot make any definitive finding one way or the other as to whether such violence took place.

[26] Both parties are guilty of proceeding on a self-help basis at or since separation. Without commenting on whether either party was justified in taking their respective positions, I have considered all of the necessary criteria set out under the Family Law Act, and in my view an interim order for exclusive possession in favour of the applicant is appropriate.

[27] Throughout the parties' traditional 20-year marriage, the applicant has always been the primary caregiver of the children, and the respondent has always worked outside the home, leaving the caregiving to the applicant.

[28] While both parties claim to have no other alternative accommodations available, or extended family in Toronto, the applicant does not have a current income, and whatever post-separation payments the respondent has made to date to the applicant have been uncharacterized and inconsistent. Presumably, this will change once the parties address the child and/or spousal supports issues going forward. However, at the moment the respondent is in a better position to obtain alternative accommodation given his income and the fact that he has previously located and/or been involved with other properties in the Greater Toronto Area for investment purposes.

[29] For these reasons, the applicant's motion is granted. However, this does not end the Court's inquiry. As stated in her Notice of Motion, the applicant only sought an order for exclusive possession. She sought no relief addressing parenting time or a parenting schedule in the event her request for exclusive possession was successful.

[30] In her sworn affidavits, the applicant raised many concerns about the respondent, including alleged alcohol and drug use. Notwithstanding those concerns, the applicant agreed to 14 separate visits over July and August 2025 between the respondent and the parties' children.

[31] The record supports a finding (at least on an interim basis) that the respondent is indeed a good parent, and an active parent who has been in the children's lives. No doubt the parties' separation has impacted the children's time with the respondent, but it is clearly in their best interest to spend as much time as reasonably possible with their father. While the applicant may have been justified for unilaterally ending the marriage and fleeing the matrimonial home, decisions surrounding the respondent's parenting time with the children cannot continue to be made unilaterally by the applicant.

[32] The respondent requested a week about schedule in the event he was granted exclusive possession of the matrimonial home. Even if the applicant was granted exclusive possession of the home, the respondent maintained his request for a week about parenting regardless of his new residential arrangements. The respondent explained his reasons for wanting the week about schedule and why it would be in the children's best interests as it would maintain stability in their lives after a summer of change and upheaval. The applicant gave virtually no evidence on the issue of parenting time or a parenting schedule other than a one sentence paragraph advising that she would be agreeable with the respondent seeing the children every other weekend. No explanation as to why that would be in the best interests of the children was given.

[33] The Court simply does not have sufficient evidence to make a truly informed decision on the issue of parenting time at this stage. However, since the children have not seen the respondent for approximately three weeks, and there is evidence in the record of the children enjoying a healthy relationship with the respondent, some form of parenting time order must be implemented on an interim basis, as the absence of any such order is clearly not in the children's best interests.

[34] I am ordering that on an interim and without prejudice basis, the children will have parenting time with the respondent over a recurring three period:

a) every two out of three weekends (i.e. parenting time on week 1, week 2 but not week 3);

b) one weeknight during week 1 and week 2; and,

c) two weeknights during week 3.

[35] Insofar as which weeknights are best, the parties shall use their best efforts to arrive at a mutually convenient agreement. If no such agreement is achieved and/or the parties wish to make further submissions on the issue of interim and without prejudice parenting time, they may schedule a further, one hour zoom attendance before me on any Tuesday or Thursday during a week I am sitting, and they are permitted to file up to five pages of additional, sworn evidence together with a factum, if necessary of up to five pages.

Costs

[36] With respect to the costs of this motion, unless a further attendance is required, I would ask the parties to exert their best efforts with a view to trying to resolve those costs failing which they may file written submissions totaling no more than five pages including a costs outline, to be delivered in accordance with the following schedule:

a) the respondent's costs submissions within seven business days of the release of this endorsement; and,

b) the applicant's costs submissions to be delivered within seven business days of the receipt of the respondent's costs submissions.

Released: September 16, 2025

Diamond J.