Tofflemire v Pike, 2013 NSSC 235

Supreme Court of Nova Scotia Citation: Tofflemire v Pike , 2013 NSSC 235 Date: 2013-07-25 Docket: SFHMPAY-086431 Registry: Halifax Between: Andrew Jay Tofflemire Applicant v. Wanda G. Pike Respondent Library Heading Judge: The Honourable Justice Elizabeth Jollimore Heard: July 19, 2013 in Halifax, Nova Scotia Written Decision: July 24, 2013 Keywords: child of the marriage, exclusive possession Legislation: Matrimonial Property Act , R.S.N.S. 1989, c. 275, subsection 2(b); clause 11(1) (a), clause 11(4)(a), clause 11(4) (

b) Summary: Both spouses sought interim exclusive possession of matrimonial home. Husband did not demonstrate settled intention to treat wife’s child as a child of the marriage (having regard to subsection 2(

b) of the Act ), so clause 11(4)(

b) was not a basis for granting possession. Applications dismissed where neither spouse proved other provision for shelter in the circumstances was not adequate pursuant to clause 11(4)(a). 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: Tofflemire v Pike, 2013 NSSC 235 Date: 2013-07-25 Docket: SFHMPAY-086431 Registry: Halifax Between: Andrew Jay Tofflemire

Applicant v. Wanda G. Pike Respondent Judge: The Honourable Justice Elizabeth Jollimore Heard: July 19, 2013, in Halifax, Nova Scotia (Oral Decision: July 19, 2013) Counsel: Jay Tofflemire on his own Tanya R. Jones for Wanda G. Pike By the Court: Introduction [ 1 ] This is an application by Jay Tofflemire for exclusive possession of a matrimonial home. His application is pursuant to clause 11(1) (

a) of the Matrimonial Property Act , R.S.N.S. 1989, c. 275. In response, his wife, Wanda Pike, asks that I award her exclusive possession of the property. Evidence [ 2 ] I received two affidavits from Mr. Tofflemire and one from Ms. Pike. Both contain information about the family and the breakdown of the spouses’ relationship. Little of the information in the affidavits is relevant to the considerations I have under

section 11 of the Matrimonial Property Act . [ 3 ] Mr. Tofflemire’s claim is based on financial concerns. He moved from the home in May 2013 when the R.C.M.P. told him that his wife was entitled to be at the home. He pays rent for his current accommodations. He works as a bus driver and, with the school vacation, he has been laid off from that employment. His income has decreased, and he is unsure the mortgage on the home will be paid. [ 4 ] Ms. Pike’s claim relates to her sixteen year old daughter, Ali. Mr. Tofflemire is not Ali’s father. [ 5 ] Ms. Pike says that she, Ali, and Mr.

Tofflemire moved to the matrimonial home in March 2011. In June 2012, Ali went to live with her father in Elmsdale. She stayed with him until October 2012. She was performing poorly in school at that point and returned to live with her mother and Mr. Tofflemire. Ali left home again in March 2013 as result of conflict with Mr. Tofflemire and moved to Jeddore. This move didn’t require her to change schools. Ms. Pike currently lives in an apartment in Sackville, and Ali is away on vacation for summer. [ 6 ] Ms. Pike says that Ali has a learning language disability and doesn’t deal well with change. Ms.

Pike wants exclusive possession of the home so Ali will have a stable environment. Returning to the home would let Ali remain at her current high school and graduate with her friends next June. Ms. Pike says that Ali is highly involved in sports and is being scouted by local universities. She says, as well, that Ali has friends in the area and a part-time job waiting for her. Ali’s dog had its pen at the matrimonial home. [ 7 ] Ms. Pike says that she has a well-established support group in the neighbourhood. She says that her employment is in the area of the home, though I do not know what she does.

The Matrimonial Property Act [ 8 ] Exclusive possession is provided for in clause 11(1) (

a) of the Matrimonial Property Act . Subsection 11(4) of the Act says that I may make an order for exclusive possession only where, in my opinion, other provision for shelter is not adequate in the circumstances or it is in the best interests of a child to make an exclusive possession order. The best interests of a child [ 9 ] “Child” is defined by subsection 2(

b) to mean a child of both spouses born within or outside the marriage. This may include a person whom both spouses have demonstrated a settled intention to treat as a child of the marriage. [ 10 ] Ms. Pike urges me to find that Mr. Tofflemire has demonstrated a settled intention to treat Ali as a child of the marriage. I cannot make this finding. The Application and Intake form that Mr. Tofflemire has filed does not list Ali as a child. Admittedly, the form asks about children who are the subject of this proceeding. Otherwise, Mr. Tofflemire makes no comment about the nature of his

relationship with Ali. [11] Ms. Pike offers much more evidence about the relationship between Ali and Mr. Tofflemire. Ms. Pike’s affidavit describesMr. Tofflemire’s conduct toward Ali in a way that shows he does not treat her as his child. According to Ms. Pike, Mr. Tofflemire hascalled Ali “a selfish spoiled brat” and “bipolar” and told her to “go back to live with daddy where she belongs”. She has describedMr. Tofflemire as rejoicing in Ali’s departure from the home and his asking Ms. Pike to choose between him and Ali. [12] In these circumstances I cannot conclude that Mr.

Tofflemire has demonstrated a settled intention to treat Ali as a child of themarriage. Because she is not a child under the Matrimonial Property Act, I can only look to clause 11(4)(

a) as a basis for making apossession order. The adequacy of other shelter [13] Because each spouse seeks exclusive possession, each has the burden of proving that other provision for shelter is notadequate in the circumstances. There has been discussion of clause 11(4)(

a) and the question of adequate alternate shelter in variouscases. [14] The earliest decision is Stephens (1980), (NS SC), [1981] 46 N.S.R. (2d) 310 (T.D.), where Chief JusticeCowan awarded a wife exclusive possession of a home. Ms. Stephens claimed that Mr. Stephens had become harassing, increasinglyhostile and threatening and, on three occasions, had assaulted her. Chief Justice Cowan rejected the argument that for Ms.

Stephens tosucceed in her claim she had to search “in all available ways through advertisements, answering advertisements and personal canvassingof housing accommodation in the [local] area, to ascertain that there was no other shelter in the area which was adequate in thecircumstances.” Ms. Stephens required a cane. His Lordship dismissed the suggestion that Ms. Stephens must move to a neighbouringhouse to live with her mother, saying that Ms.

Stephens was “not required to move out into housing accommodation which is notreasonably adequate in the circumstances, having regard to the state in which she has been accustomed to live, and the housingaccommodation which she has been accustomed to have during the marriage.” [15] Justice Haley addressed the application of a spouse who needed a wheelchair in LeBlanc, 2012 NSSC 385. The home hadbeen renovated to accommodate her wheelchair. Ms. LeBlanc had explored other housing options, found nothing available and said itwould be too difficult to move into an assisted living facility. Mr.

LeBlanc had financing available to purchase his wife’s interest in thehome. He had not looked into alternate accommodations for himself or his wife. Justice Haley granted Ms. LeBlanc’s applicationsaying, at paragraph 40, that “there is no other appropriately equipped accommodation that is sufficient to address [Ms. LeBlanc’s]special needs [her wheelchair].” [16] In Smith, 2012 NSSC 432, Justice LeBlanc dismissed the husband’s claim that he needed the matrimonial home because of amedical ailment. At paragraph 18, His Lordship said he was unable to find an evidentiary basis for an exclusive possession order.

Hewas not satisfied that alternative accommodations weren’t available and he didn’t believe that Mr. Smith had made adequate attempts tolocate accommodations for himself. Justice LeBlanc said that additional evidence would be needed to establish that Mr. Smith sufferedfrom the ailments he claimed. [17] In Dupuis, (NS S.F.), Justice Hood dismissed an application for possession where Ms. Dupuis and thecouple’s sixteen month old daughter were living with Ms. Dupuis’ friend. Her Ladyship concluded that this accommodation wasadequate. More recently, in Hubley-Swider v. Swider, 2009 NSSC 106, Mr.

Swider’s application for possession was dismissed where heprovided no evidence of other available shelter and did not deny that other shelter might be available. In Legg, 2010 NSSC 326, bothspouses had found temporary rental accommodations that were adequate. Neither was awarded possession. [18] With regard to the adequacy of alternate provision for shelter, Mr. Tofflemire has offered no evidence. It’s clear from hisaffidavit that he has found alternate accommodations. He moved out of the home in May 2013, over two months ago. He does notdescribe these accommodations as inadequate in any way. [19] Similarly, Ms.

Pike moved from the matrimonial home. She was in Cuba from March 24 to April 2, 2013. When shereturned from vacation, Mr. Tofflemire told her to leave the home. She did. She has lived elsewhere for more than three months. Shehas an apartment in Sackville. She does not describe this as inadequate in any way. [20] In the absence of any evidence that current provision of shelter is inadequate, I dismiss the applications. __________________________Elizabeth Jollimore, J.S.C.(F.D.) Halifax, Nova Scotia