Ordinelli v. Ordinelli, 2012 NSSC 167

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Ordinelli v. Ordinelli, 2012 NSSC 167 Date: 20120501 Docket: SFHMCA079725 Registry: Halifax Between: Anna Ordinelli Applicant v. Vincenzo Ordinelli Respondent LIBRARY HEADING Judge: The Honourable Justice Moira C. Legere Sers Heard: April 10, 2012 in Halifax, Nova Scotia Subject: Interim custody, interim child and spousal support and exclusive possession of the matrimonial home. Issue: Which parent ought to obtain an order for exclusive possession?

Summary: A 20 year marriage, 2 children. Father stay at home; was a self employed parent. Mother principal financial provider. Mother obtained an EPO order for exclusive possession based on escalation of marital discord and her description of father’s conduct. By consent before EPO Judge exclusive possession order extended to the interim hearing date. Result: But for the recent conduct in the final hours of this relationship the father was the stay at home parent for most of the last 12 years.

Mother failed to satisfy court no options other than exclusive possession and it was not in the best interests of the children to have father out of the home. Given the home is to be made ready for sale, the children shall remain in the home and the order reflects a

schedule of exclusive possession for both parents to a date in September for review. No child support or spousal support ordered. Restrictions on removal of possessions other than as agreed.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Ordinelli v. Ordinelli, 2012 NSSC 167 Date: 20120501 Docket: SFHMCA079725 Registry: Halifax Between: Anna Ordinelli Applicant v. Vincenzo Ordinelli Respondent Judge: The Honourable Justice Moira C. Legere Sers Heard: April 10, 2012 in Halifax, Nova Scotia Counsel: Anna Ordinelli, Self-Represented Vincenzo Ordinelli, Self-Represented By the Court:

[ 1 ] This matter was brought before the Court by a Notice of Motion for Interim Relief dated March 1, 2012. [ 2 ] The applicant ("mother") seeks interim custody, interim child support, interim spousal support and interim exclusive possession of the matrimonial home. [ 3 ] The respondent ("father") contests the application. [ 4 ] Both parties have filed an affidavit. This is an interim hearing scheduled for two hours. [ 5 ] Both parties were self represented.

The mother was obviously more at ease with articulating her position and eliciting evidence. [ 6 ] The only affidavits filed in accordance with the Rules were the affidavits of the parties. [ 7 ] The father appeared with three witnesses who were not able to testify. They did not file affidavits. There was insufficient time to hear their testimony in the scheduled interim hearing. They are character witnesses available for final hearing. [ 8 ] The evidence presented by affidavit was supplemented to a certain extent by viva voce testimony.

Emergency Protection Order [ 9 ] Previously the mother obtained an Emergency Protection Order dated March 1, 2012. This Order remained in force for the period of time to March 30, 2012. [ 10 ] Aside from the exclusive possession provisions, paragraph 4 of the Emergency Protection Order directed that the father may not directly or indirectly communicate with or contact the victim or any of the following persons (it does not state the person) except by email. Inserted in this sentence in handwriting is "phone".

This was not initialled by the person authorizing the order. [ 11 ] Paragraph 5 indicates that the father is to remain away from the following places: [address of matrimonial home]. The remainder is illegible. [ 12 ] This order was reviewed by the Supreme Court Trial Division. An amended order was issued on March 7, 2012. The order was varied as it relates to paragraphs 4 and 8 of Form B. Paragraph 4 was replaced with: The respondent may not directly or indirectly communicate with or contact the victim except by telephone or e-mail. [ 13 ] The father did not appear.

I do not have any evidence as to the reason for this. [ 14 ] A second hearing was requested by the mother, who wished to seek an extension of the Emergency Protection Order. The matter appeared before a different Justice of the Supreme Court Trial Division. [ 15 ] Both parties appeared. A further amended order was issued on March 30, 2012 extending the order to April 12, 2012 by

consent of the parties with an amendment such that paragraphs 3 and 10 of the original Emergency Protection Order were deleted. [ 16 ] The matter came before me. I have not received or been provided a legible copy of the original Emergency Protection Order. The father provided his copy of the Order which is not as legible as it might be. [ 17 ] The order dated March 30, 2012 granted exclusive possession of the home to the mother. The father was entitled to appear with a peace officer to remove his personal possessions.

The Facts as Presented [ 18 ] The parties have been married for twenty years and have two children: Peter Ordinelli, born July 20, 1999 (11) and Vincent Ordinelli born July 1, 2001(10). Both children lived in the matrimonial home with the parents in Halifax, Nova Scotia. [ 19 ] The mother is employed as a registered nurse. Prior to this proceeding she was employed essentially full time. She is currently on medical leave. [ 20 ] She applied for long-term disability and is appealing the decision of Workers' Compensation. She is uncertain whether her appeal will be successful.

She advises she is seeking appropriate employment.

I have no evidence as to her efforts to become re- employed. [ 21 ] The mother is currently in receipt of medical benefits of $1,892.24 per month with the last payment date being May 2012. [ 22 ] Her income in 2011 was $87,931; her 2010 income was $107,729; 2009 was $101,751 and 2008 was $74,127. [ 23 ] The mother advises she was dismissed from her recent employment due to her application for review with Workers' Compensation and request for accommodation. [ 24 ] The father advises that the mother was aggressive with her employers. [ 25 ] I am unable to make any conclusion regarding her work place difficulties and the nature and extent of the mother's disability, if any. [ 26 ] The father is self-employed.

His income is sporadic. I do not have his Income Tax Returns. [ 27 ] There is a significant discrepancy between their income earning potential. [ 28 ] He was a stay at home father. [ 29 ] He is currently living with his daughter from a previous marriage. He is unable to obtain his own residence without a full time job.

Marriage Breakdown /Separation [ 30 ] As a couple, the parties became intimately involved with another couple in what appeared to be a consent arrangement.

This subsequently lead to the breakdown of the marriage. [ 31 ] According to the mother, the parties agreed they would share the household and care for the children until the sale of the matrimonial home, hopefully prior to the renewal of the mortgage. [ 32 ] The mother alleged that since the breakdown occurred the father has been "emotionally and verbally abusive...with escalation periods every two to three weeks followed by a quiet period." [ 33 ] She alleges that the father threatened to destroy her life and her career, called her names, installed spy ware on the home computer and prevented her from calling 911 in an incident which essentially escalated to the extent that police became involved. [ 34 ] The father's affidavit advises that when he became aware that the mother was having an affidavit with a police officer, he confronted the mother.

She denied this. Her in-court testimony appears to indicate that she acknowledges an emotional investment in this officer. [ 35 ] The father acknowledges that in the spring of 2011 he installed a key logger on his computer and advised that she was communicating with this officer in the early morning hours. [ 36 ] When the mother became aware that he had installed this software in order to read her mail, she threw a sharp sword-like instrument at him. He contacted the police and she was escorted out of the home.

She later returned to the home. [ 37 ] The father accuses the mother of having this police officer follow him.

He recounts that when he stopped at a red light in Halifax, the officer spoke to him through the car speaker system, referring to the bike he had purchased. [ 38 ] The mother alleges that the father forcibly prevented her from calling 911 and made it very difficult for her to leave the matrimonial home. [ 39 ] She advises that he has threatened her safety by blocking her in the bedroom, swinging and pointing his fingers in her eyes, yelling and screaming at her, calling her names. [ 40 ] While she alleges he broke a door to the son's bedroom, the father advises that the door was broken well in advance of this dispute which arose at or around the final days of their marriage. [ 41 ] The mother also alleges that the father is underemployed and has failed to assist in the financial and household needs, leaving her with full responsibility for the bills. [ 42 ] On occasion, the mother has left the home and stayed with her sister. [ 43 ] It is clear that both parties have participated in escalating the conflict and that the conflict has affected the children.

There needs to be a resolution so that the children may live without this escalating conflict.

[ 44 ] The mother advises that without proper assistance from the father, she is unable to maintain the home. [ 45 ] The mother has also made allegations about the distribution of sale proceeds of an income property owned by the father. Her allegations suggest that out of these proceeds, he purchased a motorcycle for himself. What her affidavit fails to mention is that he also purchased a car for her and paid off matrimonial debt. He paid the line of credit, the Visa, the oil tank bills and various other expenses with the proceeds.

Parenting [ 46 ] The father indicates and the mother does not deny that essentially the father has been the parent most available to the children during the daytime hours for approximately 11 years and the mother was the principal financial provider. [ 47 ] For the period of time while the mother was employed, the father described their

schedule as follows: the mother would get up from work at 7:00 / 7:30 a.m., have her coffee and proceed to work and return at 5:00 p.m. The father would have supper waiting for her.

She acknowledges that when she returned home he would present her with a beer or other substance and they would discuss how to prepare supper together. [ 48 ] Essentially, they both agree he was the one primarily responsible for the home and she was unavailable during the day for calls from the school. [ 49 ] The father cooked, cleaned, did laundry, shopping and errands and had the day to day responsibility for ensuring the children got to school and home.

It was his position that he was responsible to drop everything and tend to the children. [ 50 ] The father was responsible for picking the children up after school. When he had to travel to a job, the children would come with him.

It was up to him to arrange pickup of the children at school in the event there was an illness. [ 51 ] He had established with his friends a method of picking up the children if he was not available or on a job site. [ 52 ] It was clear to the Court that the mother was unaware of the provisions the father had in place in the event he could not immediately attend the school. [ 53 ] Due to the Emergency Protection Order, the father is living with friends and unable to tend to the children as he did. [ 54 ] The father advises that it is only recently (within the last year) that the mother, as a result of her job difficulties, began to stay at home more and take a more active day time role with the children. [ 55 ] Both parties acknowledge that when both were home they contributed in various roles to maintaining the children.

The father was always responsible for making their lunches while the mother would make breakfast for the family. [ 56 ] The father prepared meals in the evening with the mother and was present in the home with the children when she arrived home. [ 57 ] The father alleges that because of his need to be present for the children and to attend to the mother when she was on medical leave, he was not able to sustain his customer base.

[ 58 ] His primary responsibility was the family.

The mother's responsibility, because of her education, was as a financial provider. [ 59 ] While it may be that the father has been underemployed, further information will have to be provided on that issue at the final hearing. [ 60 ] It is clear on the record that the mother was in fact historically the financial provider and the father was the one most available during the day, although he was called out from time to time to contracts. [ 61 ] The status quo in this case would be to have the father reside in the matrimonial home because he has been the person whose primary responsibility has been by default attending to the children's needs during the day. [ 62 ] The mother's role was not traditionally or historically to be primarily responsible for the children. [ 63 ] While she attended parent-teacher sessions, they both discussed these sessions.

She was the person with the education and the communication flowed from mother to father. She would change the times of these teacher meetings to early mornings to accommodate her work schedule.

By default the father would be with the children while the mother attended the parent-teacher sessions. [ 64 ] The father admitted she was the person with the higher education and ability to articulate and communicate and he was the person that they agreed would stay at home and be available at any time of the day, including when he was on his job, to collect the children. [ 65 ] The Emergency Protection Order has essentially significantly changed the status quo , apparently based on the altercation that occurred and the manner in which these parties went about resolving the termination of their marriage.

In particular, the father behaved in an aggressive fashion. [ 66 ] It is also clear that it is the mother who wished to have the marriage dissolved, was not happy with the marriage and was not happy with the income being produced by the father.

She wished to terminate the relationship. [ 67 ] Prior to the incident at or around the breakup and the spying on one another (certainly the mother has done the same with the father), this would have been a situation where the father should have remained in the home until the home could be sold and the parties would be joint and significant parents to their children. [ 68 ] There are two main reasons that leaving the father in the matrimonial home is problematic. [ 69 ] It is the intervening aggression that has disturbed the status quo . [ 70 ] Further, while they both agree to sell the home, the father has not diligently pursued cleaning up the home, making it saleable and putting it in a proper condition to sell it so that both parties can extract what, if any, equity that exists in order to re-establish themselves. [ 71 ] These two findings favour the mother for an exclusive possession order. [ 72 ] However, while the mother insists she wants the home sold, she has not provided the father with the tools of his trade so that he can continue to work or to continue to do work on the home.

[ 73 ] I do not have evidence before me that would allow me to conclude this is a relationship in which there has been historic domestic violence. [ 74 ] It is clear that the parties engaged in intimate relationships with another couple which has aggravated the deteriorating and irreconcilable differences between the two. In part because they continue to live in the same home, the conflict has escalated. Certainly, the father's response was inappropriate, unacceptable and cannot be repeated. Exclusive Possession [ 75 ] The Matrimonial Property Act , R.S. 1989, c.275 directs in s.11(1) as follows: Powers of court respecting matrimonial home 11

(1) Notwithstanding the ownership of a matrimonial home and its contents, the court may by order, on the application of a spouse, (

a) direct that one spouse be given exclusive possession of a matrimonial home, or part thereof, for life or for such lesser period as the court directs and release any other property that is a matrimonial home from the application of this Act; (

b) direct the spouse to whom exclusive possession is given under clause (

a) to pay such periodic or other payments to the other spouse as is prescribed in the order; (

c) direct that the contents of a matrimonial home that are matrimonial assets, or any part thereof, remain in the home for the use of the person given possession ; (

d) determine the obligation to repair and maintain the matrimonial home and to pay for other liabilities arising in respect of the matrimonial home; (

e) authorize the disposition or encumbrance of the interest of a spouse in a matrimonial home who has not been granted exclusive possession; ... Conditions for order for possession

(4) The court may only make an order for possession of the matrimonial home under subsection (1) or (3) where, in the opinion of the court, (

a) other provision for shelter is not adequate in the circumstances; or (

b) it is in the best interests of a child to make such an order. [ 76 ] I cannot conclude that it is preferable to have the mother reside in the matrimonial home over the father in order to address the children's best interests.

[ 77 ] I can conclude that the children need to be out of the conflict that has arisen and need to be outside the presence of both parents when these parents are together. [ 78 ] I also conclude and direct that all the contents of the matrimonial home that are matrimonial assets remain in the home for the use of the person given possession.

The only items that may be removed are strictly speaking the personal possessions necessary for day to day living for each parent, including their clothes, toiletries, etc. [ 79 ] The status quo demonstrated in the historical evidence as it relates to the children is that the father is the at home parent. [ 80 ] The home needs to be put in a fit condition for sale immediately and the father is the person who is best in a position to do so. [ 81 ] The mother has not proven that other options are unavailable to her.

Indeed with the sale of the home, other options will have to be available for both parents. [ 82 ] The option available to the father places obstacles in his ability to see the children and as he has been of the two the most available to the children, he needs to be in a closer position to take on the day to day care of the children. [ 83 ] The only factor playing against the father is his own behaviour in escalating the conflict and in his verbal aggression toward the mother. I am concerned about the parties' conflict.

There is an incident when she was removed by police and an incident when he was removed. [ 84 ] The only obstacle to removing the mother from the matrimonial home is her current state of finances in that she is on employment insurance. She has stayed with her sister previously. She appears to have alternate accommodations.

I do not know how far her sister lives from the matrimonial home. [ 85 ] The procrastination and failure of the father to act on their decision to sell the home is problematic should he remain in the matrimonial home. [ 86 ] To address these circumstances I order the following: [ 87 ] The parties will immediately identify a realtor, each submitting to the other three names and picking a name in common and will meet with the realtor (subject only to the terms of any peace bond or undertaking that may exist in another court) in order to take the advice of the realtor with respect to necessary improvements in order to place the home for sale. [ 88 ] Forthwith the parties will have an agreed upon a list of items the father has to complete during the first two weeks of May and thereafter the parties in accordance with the directions of the real estate agent shall place the home on the market for sale unless otherwise agreed upon between the parties in writing. [ 89 ] Both parties appeared very anxious to sell the home, although the father was dragging his feet in terms of completing what needed to be done. [ 90 ] It may be that the real estate agent advises them to do work which would take more than the first two weeks of May but may well put the parties in a position of increasing the possibility of increasing the equity in their home.

[ 91 ] If both parties agree in writing to that, they may extend the period of time before which the home is placed on the market for sale. [ 92 ] Both parties shall comply with any and all reasonable requests of the real estate agent to view in order to properly sell the home. [ 93 ] The father indicates the amount of work required is in the $40,000 range. It is his business to estimate these things.

It is apparent that they will not be able to complete and/or pay for all of the renovations in time for a sale. [ 94 ] The father needs access to his tools and the parties need to decide what renovations will be made before the home is put for sale and what will be sold as is. [ 95 ] That is not a decision for the Court at this stage of the proceeding. [ 96 ] The mother has accessed alternate accommodations in the past. [ 97 ] The father's behaviour has been the most difficult aspect of this although historically both parties have relied on him to be the primary parent. [ 98 ] Both parties are encouraged to obtain legal counsel to resolve the issue of the sale of the property immediately in order to be able to discuss with a real estate agent what needs to be done and can be done within their ability within a very short period of time.

Exclusive Possession Order [ 99 ] The only reason there need to be an exclusive possession order is the conflict between the two. [ 100 ] As long as the home is not sold, the children shall remain in the home with whatever parent is entitled to be in the home. [ 101 ] The mother has had the advantage of being in the home since the Emergency Protection Order of March 12 th and the delay between the hearing and the decision (April 10 th to April 30 th ). [ 102 ] The mother may remain in the home until noon on Friday, May 4, 2012 and thereafter shall vacate the home in order that the father can re-enter the home. [ 103 ] In the interim (immediately) she will provide a time forthwith to allow the father to remove his tools in order to allow him to seek employment. [ 104 ] Neither party will remove anything other than their personal possessions required for her day to day living and the father's tools for his work. [ 105 ] Should the parties agree in writing to a division of their personal or household possessions, the parties may remove those that have been identified in their written agreement.

[ 106 ] When the father re-enters the home on May 4, 2012 he shall immediately commence what reparations can be realistically achieved in accordance with the real estate agent's advice. [ 107 ] He shall remain in the home from May 4 th to July 2 nd , 2012. [ 108 ] If the mother has not already obtained longer-term accommodations (and she is encourage to do that), she may reenter the home on July 2, 2012 and remain there either until sale or until August 15, 2012. [ 109 ] At this time (August 15 th ), if there is not a further agreement of the parties, the father may reenter the home until it is sold or until September 30, 2012. [ 110 ] Thereafter, the parties may return to the court in the event the home is not sold to have exclusive possession order revisited.

A review will be held on Tuesday, September 4, 2012 at 11:30 a.m . [ 111 ] When the father is in the home, he shall have exclusive possession and when the mother is in the home she shall have exclusive possession. [ 112 ] The goal is to have the home sold and both parents relocated so that in September 2012 the children may enter school with their parents properly reestablished in their new residences.

Interim Joint Custody [ 113 ] With respect to the children, it is clear that both parents are significantly involved with these children and it is clear that the roles were determined to be that the mother was the financial provider and the father was the one most available to the children during work hours. [ 114 ] Both parties shall retain joint custody of their children with the right and responsibility to consult with and agree upon all major decisions with respect to the children. [ 115 ] While the children are in the care of one parent, that parent shall be responsible for the day to day care of the children. [ 116 ] In the event of an emergency, after attending to the emergency, each parent shall forthwith advise the other parent as soon as is reasonably practical of the emergency. [ 117 ] Each parent shall be entitled to have access to third party service providers to ensure that they are continually updated on the progress of their children. [ 118 ] Currently, it is not advisable for both parents to attend parent-teacher meetings directly and together and thus, they may continue in the same manner as they had previously with the mother attending parent-teacher meetings and the father being advise of any concerns that arise from the parent-teacher meetings as well as any directions with respect to therapeutic involvement.

He may also attend for separate meetings with teachers as arranged between the school and himself. [ 119 ] When the father is in the home, he is the primary parent and when the mother is in the home she is the primary parent.

[ 120 ] The parent who is not in the home shall have reasonable parenting time with the children at reasonable times on reasonable notice to include every second weekend, one overnight through the week to be agreed upon between the parties and reasonable telephone contact. [ 121 ] They shall also be entitled to have a second weekday evening (not overnight at this time) to have the children with them for supper. [ 122 ] It is presumed at this point in time that the mother will reenter the matrimonial home only if she has not found alternate accommodations.

This period of time will allow the father to work on the matrimonial home but also to seek alternate accommodations to ensure that when the home is sold he is in a position to continue his parenting with the children. [ 123 ] The parties may agree on such other parenting times for the parent not in the matrimonial home as they are able and in this interim period of time these times shall be agreed upon in writing to avoid disagreement and dispute. [ 124 ] In the event the parties are unable to agree on summer access and have difficulty getting before the court, they shall agree on a equal division of the children's summer vacation in a manner that best benefits the children to ensure the children have contact with both parents during the summer. [ 125 ] There is no ability on the part of the father to pay spousal support. [ 126 ] At this time I have insufficient information about the father's and mother's ongoing income to address child support.

The parties will disclose their last three years Income Tax Returns, together with all schedules and income receipts, with verified information regarding their year to date 2012 income, to determine child support payable at the final hearing or on review. Legere Sers, J.