S.H.H. v. M.R. Date:, 2013 BCPC 431

Citation: S.H.H. v. M.R. Date: 20130118 2013 BCPC 0431 File No: 14410 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 c. 128 BETWEEN: S.H.H . APPLICANT AND: M.R . RESPONDENT RULING OF THE HONOURABLE JUDGE E.L. BAYLIFF Counsel for the Applicant: G. Petrisor Appearing on his own behalf: M.R . Place of Hearing: Quesnel , B.C.

Date of Hearing: January 17, 2013 Date of Judgment: January 18, 2013 [ 1 ] This is my Ruling at the conclusion of a short, interim hearing regarding the application of S.H.H. filed on October 3 rd , 2012 (#12 [i] ). The Respondent is M.R. (#13). The matter had been scheduled for a one day (5 hour) hearing. Due to some criminal matters and a child protection matter that also had to be heard I was only able to devote approximately 3 hours of court time to this matter. I allocated the time approximately equally between the parties.

I heard about 1 hour of oral evidence from each and very brief cross examination of each. I also allowed both parties to file documentary evidence (see Exhibits 1 to 4) which included some lengthy “Affidavits” prepared by M.R. I have considered both the oral and the documentary evidence in reaching my decision. [ 2 ] S.H.H. and M.R. were legally married in 2005. Both were in previous relationships and have children in their late teens and early 20’s from those previous relationships.

They do not have any biological children together though each has acted as a step parent to the other’s child(ren) during the 7 years of their marriage. [ 3 ] S.H.H. seeks two orders: 1) Pursuant to s. 37(a), for an order restraining M.R. from communicating with her; and 2) Pursuant to s. 124, for a temporary order of exclusive occupancy of property located at [omitted for publication], Quesnel, B.C. (“the property”).

Since M.R. resides at the property the effect of such an order would be that he would have to move off the property and find accommodation elsewhere and S.H.H. and her 16 year old son D. would move back onto the property. [ 4 ] S.H.H., through her counsel, Mr.

Petrisor, argues that there should be a restraining order concerning communication because M.R. has difficulty understanding or accepting that S.H.H. wishes to separate herself from him emotionally as well as physically and he continues to try to text her and contact her in a relentless fashion that is, at a minimum, exhausting and, at worst, harassing. [ 5 ] As for exclusive occupancy of the property, which is the main issue here, S.H.H. acknowledges that her relationship with M.R. has been ‘on again, off again’ for a number of years but she insists that she now regards their separation as permanent.

She testified that she has come to find it emotionally “intolerable” to live in the mobile home on the property, in very close proximity to her estranged husband, M.R., who lives in the partially completed main house right next door. This is particularly so, she says, because the two buildings are not only very close together – just 10 feet apart, see Exhibit 1 - in a reasonably remote, rural area, but they also share a common driveway, common parking area, common electrical supply, common water supply and common heat source.

She argues that she wishes to sever her ties with M.R. but it is impossible to do so if she continues to live there. Because of the way the property is set up, there will always be an excuse for M.R. to be in constant communication and contact with her. On November 22 nd , 2012 she and D. moved out of the mobile home and into a rented apartment in town to avoid this constant contact. She argues that either she or M.R. must assume exclusive occupancy of the property.

She argues that it should be her because it was her money that purchased the property, her name that is on title; it is she who has paid the lion’s share of the mortgage payments over the years and it is she who has the best ability to continue to make those payments so that the place is not lost to foreclosure. Also, she argues that it is in D.’s best interests that he move back to the property which he misses and regards as his home.

She argues that it is M.R. who should vacate the property and rent a place in town rather than she and D. [ 6 ] I have decided that I must grant most of what S.H.H. seeks in her application. On the s. 37(

a) restraint of communication, I will allow some communication between M.R. and S.H.H., but for a period of 6 months will limit it to one written message (text, instant message, e mail or letter) per day not to exceed ½ page in length (8½ x 11 inch page) and, if consented to by both parties, one face to face meeting per week, in a public place or if it is in a private place then it must be in the presence of a counsellor, mediator, or lawyer. [ 7 ] As it concerns exclusive occupancy, I will make the order sought, granting S.H.H. exclusive occupancy of the entire property (s. 124(3)(a)).

Commencing March 1 st , 2013 at 12:00 noon, S.H.H. shall have exclusive occupancy of the land and buildings having legal description [omitted for publishing] Quesnel, B.C. This means that M.R. will have to vacate the property by March 1 st and find accommodation elsewhere. [ 8 ] As for the personal possessions of M.R. used or stored at the property, pursuant to s. 124(2) I intend to order that M.R. may take with him personal possessions that clearly belong to him or that he needs for the [omitted for publication] program.

My proposal is that this aspect of the order be worded as set out below, but I will hear submissions from both M.R. and counsel for S.H.H. at the end of my reasons about how to fine tune the wording of this aspect of the Order: “M.R. may remove the following personal property not later than March 1 st , 2013 at 12 noon:

a) his personal possessions (clothing, toiletries, documents, books, furniture and memorabilia belonging exclusively to him);

b) tools and equipment purchased by him with money earned by him;

c) all records and equipment, including the printer, used in the business [omitted for publication]; and

d) for greater clarity, M.R. shall not remove any building supplies, tools, equipment or other items of personal property acquired with money belonging to, or earned by, S.H.H.; After March 1 st , 2013, M.R. may remove such additional items as may be agreed upon in writing between the parties, on times and dates agreed between the parties.”

[ 9 ] I will now explain why I have reached the decisions that I have on the issues in this case. [ 10 ] As I said earlier, S.H.H. and M.R. were married in 2005. I gather they were living in Prince George at the time. They met through their mutual interest in the [omitted for publishing] faith. S.H.H. was originally from Quesnel. She has three children – now 21, 19 and D. at age 16 – from an earlier marriage and the father of those children lived in Quesnel. According to M.R., S.H.H. faced a number of challenges in her life.

Despite those challenges she was successful in becoming qualified as a Social Worker and she currently holds 3 different jobs in the social work and counselling field, one is with the [omitted for publication] in Quesnel, the second is with the [omitted for publication] and the third is with [omitted for publication] which I understand provides housing and other services to the needy. [ 11 ] M.R. is originally from [omitted for publication]. With the support and assistance of his parents, he came to Canada to further his education and he was most successful in doing so.

He has a Bachelor’s degree, two Master’s degrees and a PhD. He describes himself as an “ethicist, logician, a manager and one who has an interest in contributing to the betterment of his community”, particularly to the betterment of youth. [ii] He speaks 4 languages. His first language is not English and he does speak with an accent and does struggle with writing English. M.R. has been employed at several universities, most recently at [omitted for publication] as a professor teaching ethics and cross cultural awareness to business students.

Unfortunately, there was some sort of disagreement which resulted in the University terminating his employment. For awhile he was employed by an on-line university but he stopped doing that work because he found that the pay he received from that type of work was not worth the effort. Between then – and I gather this was around the time the family moved to Quesnel, so about 2007 or 2008 – and the fall of 2012, M.R. has not been employed in the sense of bringing in any income. S.H.H. was the sole bread winner during this 4 or 5 year period.

M.R. stayed home and, he argues, contributed equally through his labour, developing the property purchased by S.H.H., bringing in electricity, water and septic and bit by bit building the dwellings now located on the property.

As well, he did all the things that supportive, stay at home spouses do, such as cooking, helping to maintain the household, caring for his son, E., who lived with them for several years, and helping S.H.H. care for her two younger children, J. and D. [ 12 ] Then, at some point – I had understood it to be in the fall of 2012 but it may have been earlier – M.R. was successful in obtaining a grant from Service Canada to fund a program he designed called [omitted for publication]. This was an idea he and S.H.H. had come up with some years earlier.

The goal of [omitted for publication] is to eradicate barriers to employment for youth. I have read the materials about the program which are attached to M.R.’s Affidavits ( Exhibit 4). As a result of the grant from Service Canada I gather that M.R. does now have a source of income in the form of a monthly advance in the range of $1,000 to $1,200 for his work with [omitted for publication], teaching, placing and monitoring difficult to employ youth in this community. [ 13 ] As I said earlier, S.H.H. and M.R. moved to Quesnel in 2007. One of her parents had passed away and left her about $40,000 in inheritance.

With this money she was able to purchase a vacant lot at [omitted for publication] (“the property” referred to earlier). Only S.H.H.’s name is on title. Apparently M.R. did not want his name to be on the title in order to avoid collection action by the mother of his son, E., regarding child support. [iii] Using the inheritance money and a bank loan secured by a mortgage on the property, S.H.H. paid to have services (water, electricity and septic) brought to the property. She also purchased a mobile home for the family to live in until a proper house could be built.

She began paying on the mortgage and has made all payments since its inception in October, 2007 with the exception of two months in the fall of 2012 when she was particularly stretched financially and close to defaulting. At that point M.R., using the grant money that he was now receiving for his work on the [omitted for publication] program, stepped in to assist and made 4 bi-weekly payments. See Exhibit 2. [iv] [ 14 ] As of now, the 3,700 square foot main house is still under construction. M.R. estimates that it is about 85% finished.

Although far from completed, I gather that it is habitable and it is where M.R. has been living for some time now. He also uses the third floor in the house, which is about 600 square feet, as a library and writing area and also as the place where he maintains the administrative records for the [omitted for publication] program. S.H.H. and D. were living in the mobile home which is about 10 feet away from the house. The close proximity of the two dwellings can be seen in the photograph marked Exhibit 1.

As noted, the two dwellings share a common driveway, a common parking space, a common water supply, a common electrical supply and a common heat source (an external, wood powered boiler system). [ 15 ] Although M.R. acknowledges that he has contributed very little in the way of cash to the purchase of the property or to the costs of developing it and building on it, he emphasizes that he has contributed a great deal in the way of “sweat equity”. His evidence is that he has done a great deal of the actual work involved in developing and building on the property.

M.R. listed the following examples of how, through his labour and undoubted intelligence and persistence, he has saved S.H.H. money in the ongoing construction of the house and other structures and services on the property: - design of the house (see Exhibit 4 [v] ) for a saving of about $7,000; - hiring a bull dozer himself and putting in the driveway and opening up the building site (no figure was given); - doing much of the septic installation himself for a saving of about $14,000; - installing a pipe in the well for a saving of about $1,000; - moving their temporary residence, a mobile home, onto the property at a saving of about $9,500; - labour to build the addition on the mobile home (no value given); - wiring the house for a saving of about $14,000; - purchasing doors for the house at a cost of about $2,000; - purchasing a snow blower at a cost of about $1,800;

- purchasing a stove for the property at a value of $1,455; - purchasing tongue and groove flooring at a cost of $20 per plank (no total figure given); - installing all the internal plumbing (total savings not given); - bringing water into the house at a saving of about $15,000; - purchasing windows at Rona (no value given); - installing the radiant flooring at a saving of about $8,000; - insulating the house (no value given); - labour to construct a “cabin” for J. (no value given). [ 16 ] M.R. testified that when S.H.H. bought the property in 2007 it was valued at about $10,000.

He says it is now assessed at about $239,000 and his position is that a great part of that roughly $220,000 increase in value is due to his efforts. He argues that this is the primary reason why the court ought to deny S.H.H.’s application for exclusive occupancy of the property. Simply put, he has invested as much, if not more, in the property as she, and it is his property as much as it is hers even though his name is not on title. [ 17 ] Second, M.R. argues that there is really no substantive reason why he and S.H.H. cannot continue to both reside at the property as “good neighbours” [vi] .

He insists that he has never, ever been physically violent towards S.H.H. On the contrary, he says that any violence that has existed in their relationship has been perpetrated by her on him. As for persistent communication or, as S.H.H. would have it, a sort of emotional harassment, M.R. asks the court to take a look at the many text or instant messages that are attached to his Affidavits. He argues that they reveal absolutely nothing inappropriate; rather, they are calm, respectful communications between two people who share many values and beliefs and are “good neighbours” and friends.

He insists that he does not try to force himself on S.H.H. sexually or emotionally. In fact, if any one is the aggressor in such matters, it is her. He testifies passionately that because of his belief system, which she shares and understands, he profoundly respects her space and her liberty and there is just no rational basis for her evidence that it has become “intolerable” for her to live next door to him on the property.

As for the financial concern with keeping up with the mortgage if she insists upon moving away from the property and renting in town, M.R. argues that she should hand over the management of the finances to him and he will see that the mortgage gets paid, in part, by renting out the mobile home. [ 18 ] Continuing with this theme – that there is really no basis for S.H.H.’s assertion that continuing to share the property has become “intolerable” – I have considered the history – that there was a Restraining Order in February 2010 which was cancelled by consent after a month and also an Order that S.H.H. have exclusive occupancy of the mobile home for a year which expired in January, 2011.

As I understand it, these parties have been more or less separated for going on three years now and for more than half that time have lived in the two different residences on the property – S.H.H. and D. in the mobile and M.R. in the partially completed house or perhaps in “J.’s cabin”. M.R.’s argument, I believe, is that there is no substantive reason why that situation cannot continue. [ 19 ] M.R. also makes the point that there is no basis for concern about D.’s well-being.

He asserts that he gets along very well with D. and has made ample reference to this in his “Affidavits” ( Exhibit 4). [ 20 ] Other points made by M.R., either directly or by inference are that he has worked long and hard on this property and it is very important to him emotionally and financially, just as it is to S.H.H. It constitutes his plan for retirement and it is his home just as much as it is her home or D.’s home. He has no where else to go.

He also questions how S.H.H. and D. will manage at the property if he is not there to do the rather large amount of heavy work necessary to keep a rural, unserviced property of this sort habitable – tasks such as cutting wood, feeding the furnace, fixing the pump and the well, clearing the long driveway of snow, adjusting the internet and, above all, doing all the many tasks necessary to finish off the house and bring the property to its full potential. [ 21 ] Finally, M.R. argues that the house is essential to his [omitted for publication] business because it contains his office.

He does the training part of his work over at the [omitted for publication] Centre where he rents a room for an hourly rate (see Exhibit 3) but the administration is handled out of the third floor of the house. [ 22 ] In my view the starting point for my decision in this case must be the question of whether it has been established that these two spouses cannot continue to share the property – S.H.H. in the mobile and M.R. in the house. I find that this has been established.

I find that S.H.H. is sincere in her assertion that she wishes to permanently separate from M.R. and that she finds it extremely stressful emotionally to have to continue to reside in such close proximity to him. Her actions support this in that, over the past 3 years, she has twice moved off the property and rented a place for herself and D. in town despite the very serious financial burden of paying for two places that resulted. [ 23 ] I also find that, when assessed objectively, her emotional stress is reasonable.

The break up of a marriage is recognized as being a very stressful experience for most people and I have no reason to find that this couple is any different. It is the rare couple who, once separated, could happily continue to live right next door to each other, in a remote area, where they are required to have constant contact with one another about issues to do with the property, such as heat and water and snow removal. The emotional contradictions inherent in such a situation are simply too great.

There is evidence of these contradictions in the testimony of both parties in this case and in M.R.’s “Affidavits” ( Exhibit 4). For example, S.H.H. complained that M.R. would demand her attention continually whereas M.R. felt that he was simply trying to work out the parameters of their new relationship. In the “Affidavits” M.R. quotes conversations where S.H.H. seemed to be conflicted about his relationship with other women and some of the text messages clearly show him conflicted about when and in what circumstances she would welcome him giving her a hug.

These are just a few of the many examples of social and emotional difficulties that arise when former spouses live “on top of each other”, as inevitably will be the case if they both continue to reside at the property. [ 24 ] I find there is an added element in this case. M.R. testified that he had had some difficulties in his relationships with other

women in the past. Other women, or at least one other woman, had apparently sought some sort of a peace bond or restraining order against him. It would appear that it is not only S.H.H. who has found M.R.’s persistent style of communication difficult to cope with. [ 25 ] I therefore conclude that it is essential that these two estranged spouses be permitted to move forward with their lives and I further conclude that they cannot do so if they are both residing at the property.

An order for exclusive occupancy of the entire property is justified in this case. [ 26 ] I move then to the question of which of the two spouses should be granted exclusive occupancy of the property. On this point I conclude that the most weighty fact is that the property is in the sole name of S.H.H. and it is she who is responsible for the loan which is mortgaged against the property. It seems to me that she will be in an untenable position, financially, if she is not granted exclusive occupancy of the property.

The debt is hers and she needs to have control of the property if she is to have a chance of meeting her responsibility to the bank.

In fact, I would question whether the bank would be willing to continue to lend the money to S.H.H. if it knew that she did not have exclusive occupancy. [ 27 ] If this were a more wealthy family, or if M.R. had a stable source of income and a regular history of making payments on the mortgage or perhaps towards some other family debt, then I might very well be prepared to entrust him with managing the property and making the mortgage payments but that is not the situation. [ 28 ] M.R. makes a good case for the amount of value he has put into the property through his work even though his name is not on title.

However, I find that this is neither the time, nor the forum to grant him a remedy for his investment. The proper forum for such a claim is Supreme Court and I note that M.R. has wisely taken the precaution of registering a Land (Spouse Protection) Act charge on the property.

He did this back in December, 2010. [vii] [ 29 ] I am satisfied, having heard S.H.H. testify, that she is not a vindictive or dishonest person and accordingly she will look after the property and not do anything improper to jeopardize any claim M.R. may have to it. [ 30 ] D.’s attachment to the property was raised by S.H.H. as another reason why she should be granted the order of exclusive occupancy. This does bear some weight with me though it is certainly not a determinative factor in my decision.

As I believe was pointed out by M.R., either in his testimony or in his written material, as a teenage boy, D. likely also has many attachments in town at this time in his life and furthermore, is not likely to continue to live at the property once he leaves school. [ 31 ] As for M.R.’s assertion that he must have access to the property because this is where he conducts the administration for his [omitted for publication] business, I find myself in agreement with counsel for S.H.H., that there is nothing about the administration of this business which cannot be conducted from “any kitchen table”.

It is a home based business with a relatively small client load and no employees other than M.R., at least not in the administration end. Therefore, I am satisfied that it can be conducted just as effectively from an apartment in town, or from any other location where M.R. chooses to live. [ 32 ] In

summary, I recognize that this is a very difficult situation for both M.R. and S.H.H. Both are very attached to this property. Both have invested a lot in it. It is not easy for either of them to move away from the place they have come, over the past 5 years, to consider as home. Furthermore, neither of them is wealthy. Renting somewhere else to live is not easy for either of them.

However, despite these acknowledged difficulties, I am satisfied that it has long since become essential that exclusive occupancy be granted to one or other of them and for the reasons indicated I find that it must be granted to the spouse whose name is on title and who holds the mortgage and that is S.H.H. _______________________ E.L.

Bayliff Provincial Court Judge [i] Reference is to the document number in Provincial Court file # 14410, Quesnel Registry. [ii] Affidavit filed November 14 th , 2012, ¶ 1 ( Exhibit 4). [iii] Affidavit filed November 14 th , 2012 ¶ 52(b) ( Exhibit 4). [iv] Letter dated January 16 th , 2013 from CIBC. [v] See Affidavit filed November 14 th , 2012, attachment ‘B’. [vi] “Good neighbor(s)”, “Good neighbourhood” are terms that appear several times in Mr. R. text and e messages appended to his “Affidavits” ( Exhibit 4).

[vii] See Affidavit filed November 14 th , 2012, attachment ‘T’ ( Exhibit 4).