G.J.U. v. J.L.U.

2017 BCSC 1352 G.J.U. v. J.L.U. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: G.J.U. v. J.L.U., 2017 BCSC 1352 Date: 20170802 Docket: ED79632 Registry: Nanaimo Between: G.J.U Claimant And: J.L.U. Respondent Before: Master Bouck Reasons for Judgment Counsel for the Claimant: M. Screech Counsel for the Respondent: M. Warsh Place and Date of Hearing: Nanaimo, B.C. July 13, 2017 Place and Date of Judgment: Nanaimo, B.C. August 2, 2017 The Applications [1] The parties bring cross-applications for interim relief in this family law proceeding. The respondent wife ("J.") seeks orders relating to parenting and child support as well as exclusive occupancy of the former family home. In his notice of application, the claimant husband ("G.") seeks an order that the family home be sold before trial as well as an order that J. pay child support. [2] J.'s application was filed May 25, 2017 and originally set to be heard on June 29, 2017. The parties appeared before Master Dick on that date but only one aspect of J's application was spoken to. G.'s application was filed July 4, 2017. [3] For the purposes of these reasons, I have chosen to initialize the parties' names, those of their two children and one other affiant. For convenience, the parties are referred to by the initial of their first names. The Evidence [4] The parties' affidavit material addresses the history of their relationship, the circumstances of the marital breakdown and various events since their separation, but also contains many facts that are not relevant to the applications before the court. Some of the content of the affidavit material is inadmissible (see L.M.U. v. R.L.U., 2004 BCSC 95) or will be given no weight, particularly those portions of the affidavits that contain innuendo, argument, personal opinions and other scandalous remarks: Creber v. Franklin, [1993] B.C.J. No. 890 at para. 19. I also observe that in one of her affidavits and in her response to G.'s application, J. describes discussions held at a Judicial Case Conference (the "JCC"). Given the nature and objectives of a JCC, such discussions must never find their way into any material or submissions before the court. [5] What follows is a summary of the admissible and relevant evidence. [6] The parties were married on September 3, 2011, and separated on June 26, 2016. They have two children together: P. born December 23, 2011, and L. born September 11, 2014. The parties lived together in the family home for several weeks after separating but J. left the residence sometime in August 2016. The evidence is in conflict as to whether J. left the home on her own volition or was forced to do so due to G.'s actions. Since that time, J. found other living accommodations, first in Ladysmith, then in Duncan and eventually back in Nanaimo. [7] G. is 32 years old and employed as a corrections officer at the Nanaimo Correctional Center ("NCC"). J. is described in the evidence as both a care assistant and a support worker. J. holds a degree in psychology and is certified as an addiction counsellor. At present, J. is employed by the Port Alberni Association of Community Living. According to the most recently filed financial statements, G.'s annual employment income is $44,038, while J. reports an annual income of $22,212 as of March 2017. J. further deposes that her annualized 2017 income might reach $32,000. [8] The parties have lived in Nanaimo since 2013, having re-located from Ontario for the purposes of G.'s position at NCC. The parties purchased the family home upon their arrival in Nanaimo. The home is a three bedroom townhouse with an appraised value as of May 25, 2017 of $277,100. The home is part of a bare land strata development. The strata by-laws do not allow the property to be rented. [9] Neither party is occupying the family home. J. is living in a two bedroom apartment in Nanaimo. G. stayed in the family home until October 2016, at which point he moved in with his parents who had re-located to Nanaimo from Ontario for the purpose of assisting their son after the marital breakdown. G. is renovating the family home, in anticipation of the proposed sale and is paying all costs associated with the renovation and maintenance of the property. G. deposes to paying a monthly cost of $1,243 for the home related expenses, including payment of a mortgage. Including those costs, G.'s annual expenses exceed his income by about $17,000. [10] Between June and November 2016, the parties largely shared the parenting of the two children. However, G. says that J. was not always consistent in exercising her parenting time; J. denies this allegation. [11] Matters came to a head in November 2016 when G. applied for a parenting order that would have the two children in his primary care, with J.'s parenting to be supervised. It appears that the precipitating event for the application was an allegation by G. that J. was "withholding" the two children. The application came before Baird J. prior to a JCC being conducted. J. was unrepresented at the hearing and had not filed any responsive material. The order pronounced on November 21, 2016, requires J. to return the two children to G. and thereafter have supervised parenting time with the children on each Tuesday and Thursday from 10 a.m. through to 4 p.m. at the home shared by G., the children and G.'s parents. The court further ordered that the children reside primarily with G. and that G. have all parental responsibilities pursuant to ss. 40 and 41 of the Family Law Act, S.B.C. 2011, c. 25 (the "FLA"). The court granted J. liberty to set aside the order upon three days' written notice to G. (the "Baird Order"). [12] The evidence before the court at that time was G.'s affidavit sworn October 31, 2017 and that of the parties' then mutual friend and G's co-worker, R.L., sworn October 14, 2017. Since that time, and in conjunction with the applications brought by the parties, seven additional affidavits have been filed and exchanged. J.'s first affidavit was sworn May 24, 2017. [13] The affidavit material describes the many possible reasons for the marital breakdown. One reason is J.'s extra-marital affair with one Willam Worden, an individual who happens to be a former inmate at NCC and at least known of by G. and R.L. J. met Mr. Worden through her employment as an intake worker at the Salvation Army Hope Centre in Nanaimo. Mr. Worden is described by G. and R.L. as a violent criminal and known gang member. J. minimizes Mr. Worden's criminal past and, in any event, says that he is now rehabilitated. J. became romantically involved with Mr. Worden in January 2016, but does not say exactly when their intimate relationship ended. She says that the two of them now have little contact except for an occasional "text" and that she is embarrassed and remorseful about the affair. She also deposes that Mr. Worden is living in Nelson, B.C. G. says that the respondent has provided financial support to Mr. Worden; J. denies that allegation. J. also developed relationships with other former convicts whom she met through the Salvation Army or through Mr. Worden. [14] The parties describe incidents of family violence witnessed by one or both of the children. The parties are highly critical of each other's parenting skills and suggest that one or both of the children have been in harm's way or even suffered harm while in the other party's care. [15] The parties accuse each other of using and abusing illicit drugs. Both parties admit to a history of illegal drug use. J. says that she no longer consumes such drugs and is willing to submit to random testing as part of any parenting order so long as G. pays for that testing. G. says that J. has a history of mental illness and had threatened on at least one occasion to commit suicide. J. acknowledges that she suffers from anxiety and depression and is taking medication under a doctor's supervision for these conditions but denies any suicidal ideation. [16] In March 2017, the parties attended a JCC before Madam Justice MacNaughton. By consent, the Baird Order was varied to provide that J.'s parenting time take place two days per week from 6:30 p.m. to 8:30 p.m. and one day on the weekend from 11 a.m. to 7 p.m. The parenting time was to be agreed two months in advance and remain supervised by G. or his parents at their home in Lantzville. An exception to this arrangement is to allow J.'s father, Dr. John Bruno, to be the supervisor "when he is in Nanaimo". The admissible evidence does not disclose where Dr. Bruno usually resides. [17] Until the JCC order was pronounced, the supervisors of J.'s parenting time were G. and G.'s parents. There is no evidence as to when or if Dr. Bruno has acted in that capacity. [18] While the parenting time has taken place in the home shared by G. and his parents, J. is typically left alone with the two children. According to both parties, J.'s parenting time under this arrangement has not gone entirely smoothly. G. says that J. has failed to adequately watch over the children during the parenting time and has either not shown up or cancelled her time on a number of occasions. J. does not really address these purported cancellations but says that she is made to feel uncomfortable and humiliated by at least G. if not also G.'s parents when exercising the parenting time. J. does address an incident in which L. suffered a burn to his hand upon touching a frying pan while the two of them were making pancakes. G. says that the burn was serious and required a visit to the hospital. J. says that the burn could have healed in a day and G. was responsible for not treating the burn appropriately when the child was returned to his father's care. J. says that the children are happy during their parenting time and ask her not leave. The parenting time largely consists of reading, playing video games and watching movies. There is no evidence from G.'s parents, nor any admissible affidavit evidence from Dr. Bruno, addressing those individuals' observations of the supervised parenting time. [19] The Ministry of Children and Family Development was involved with the family briefly, but no intervention measures have ever been taken. [20] The parties are both concerned about the emotional well-being of P. and apparently consented to an order that G. take the child to a counsellor. I say apparently as no order has been entered in that regard. During submissions on this application, Mr. Warsh asked the court to enforce this order, although only an unendorsed draft of a June 29, 2017 order was before the court. The enforcement of the order was not sought in any notice of application. [21] Since the Baird Order was issued, J. herself has pursued counselling in various settings and also undertaken two parenting-related courses. [22] In April 2017, G. discovered an application for a new Quality Foods points card, accidentally left behind by J. during her parenting time. The application was completed by J. and requests an additional card for Mr. Worden. J. says that she only agreed to assist Mr. Worden because he had no monies to buy groceries. She maintains that their relationship is distant but cordial. G. deposes that there is no Quality Foods store in Nelson, B.C., so J.'s evidence regarding the present circumstances of her relationship with Mr. Worden should accepted. [23] In terms of equity in the family home, the balance owing on the mortgage registered on title is $150,930.06 as of July 10, 2017. J. deposes that if the family home were to be sold, the parties would be liable for a mortgage penalty of $5,799.16 and an estimated real estate commission of $12,313. [24] J. says that she will pay all costs associated with the family home if she is granted an order for exclusive occupancy. While accepting that the strata by-laws do not allow rentals, J. says that she will acquire a roommate to share in the home's expenses. J. also says that her father will subsidize any shortfall if she is unable to meet those expenses. J.'s current annualized expenses exceed her income by almost three-fold. J. also deposes that her father has offered to help her "purchase the home" although there is no admissible evidence from Dr. Bruno addressing this possibility. The affidavit does not address whether there is any prejudice to J. at trial if the family home is sold in the interim period. It appears that J. will be making a claim that her contribution to the down payment on the home of $35,000 is excluded property. [25] No trial date has been set in the proceeding. Discussion [26] Before addressing the specific relief sought by the parties, I find it necessary to make some general observations about applications before the court. [27] First, the court is in no position to make findings of credibility based on the affidavit material presented, despite the ardent submissions made by J.'s counsel that I do so. The parties disagree on many salient facts that impact the orders being sought, including each party's ability to parent the children. As a rule, it will be left up to the trial judge to determine which party's version of events is true and accurate. The exception to the rule is where there is objective evidence corroborating one affiant's statement of fact. On this application, there is no basis on which the court would choose to overall prefer the evidence of J. over that of G. on the many disputed facts. [28] Second, the parties are reminded that interim orders, including those that vary or modify earlier orders, are designed primarily to maintain the status quo and provide short terms solutions until the evidence and issues can be more fully canvassed at trial: Fitzgibbon v. Fitzgibbon, 2014 BCSC 403 at para. 22. [29] Lastly, the material before the court on both applications is wanting. In their respective notices of application and responses, neither party has cited any common law authorities, nor provided an outline of the Legal Basis for their position[1]. The content of the Legal Basis portion of these documents can be described as generic at best. The factual basis portions of the materials is also incomplete. While no objection was taken by either party to the content of their opponent's material, counsel is reminded of the guidance provided by the court in Dupre v. Patterson, 2013 BCSC 1561, and in particular at paragraphs 51 to 56. [30] I will now address the remedies sought by each party. I. The Respondent's Application [31] The relief sought by J. in her notice of application can be summarized as follows: 1. Set aside the Baird Order granting G. all parental responsibilities and instead order that the parties share those responsibilities[2] on a Joyce Model order; 2. Set aside the Baird Order (and, by necessity, the JCC order) regarding J.'s parenting time, and instead order that the parties have "equal unsupervised" parenting time, on the following graduated schedule: a) for four (4) weeks commencing June 30, 2017, the respondent to get parenting time from Friday at 7:00 pm to Sunday at 6:00 pm; b) for the next four (4) weeks the respondent to get parenting time from Thursday at 6:00 pm to Sunday at 6:00 pm; c) then to a shared parenting arrangement from Friday at 6:00 pm to Friday at 6:00 pm. 3. Payment of child support by G. to J.; 4. J. have exclusive occupancy of the family home; and 5. G. to pay J. occupational rent with respect to the family home. [32] In her written materials, J. did not identify any threshold test to be met before the court can consider setting aside existing interim orders. When that question was put to counsel by the court, Mr. Warsh submitted that there has been a material change of circumstances since the Baird Order was made. Those suggested changes were identified as J.'s participation in counselling and the completion of parenting courses together with her more stable employment situation and the purported termination of her relationship with Mr. Worden. [33] In granting liberty to J. to set aside his order, Baird J. appears to have approached G.'s application as if it were made without notice. On that basis, it is not entirely clear that J. must demonstrate a material change of circumstances in order to have that order set aside. Arguably, the court may look afresh at the evidence in deciding parenting arrangements and parental responsibilities now that J. has responded with her own evidence. [34] Nonetheless, the fact that J. has waited six months to apply to set aside the Baird Order means that the parenting arrangements have become, in effect, the status quo. The JCC order kept the supervised parenting in place pending trial so a variation of that order must also be considered. [35] Although not specifically argued, I conclude that the application to set aside the Baird Order and the JCC order with respect to J.'s parenting time with the children and the Baird Order with respect to the allocation of parental responsibilities is governed by ss. 215 and 216 of the FLA: Changing, suspending or terminating orders generally 215 (1) Subject to this Act, a court on application by a party may change, suspend or terminate an order, if there has been a change in circumstances since the order was made. (2) A court may not change, suspend or terminate an order made under Part 5 [Property Division] or 6 [Pension Division] except as provided under those Parts. Court may make interim orders 216 (1) Subject to this Act, if an application is made for an order under this Act, a court may make an interim order for the relief applied for. (2) In making an interim order respecting a family law dispute, the court, to the extent practicable, must make the interim order in accordance with any requirements or conditions of this Act that would apply if the order were not an interim order. (3) On application by a party, a court may change, suspend or terminate an interim order made under subsection (1) if satisfied that at least one of the following circumstances exists: (a) a change in circumstances has occurred since the interim order was made; (b) evidence of a substantial nature that was not available at the time the interim order was made has become available. (4) In making an order under subsection (3), the court must take into account all of the following: (a) the change in circumstances or the evidence, or both, referred to in subsection (3); (b) the length of time that has passed since the interim order was made; (c) whether the interim order was made for the purpose of having a temporary arrangement in place, with the intention that the arrangement (i) would not adversely affect the position of either party during negotiations, during family dispute resolution or at trial, and (ii) would not necessarily reflect the final arrangement between the parties; (d) whether a trial has been scheduled; (e) any potential adverse effect, on a party or a child of a party, of either making or declining to make an order under subsection (3). [36] The leading case on the application of those provisions is B.K. v. J.B., 2015 BCSC 1481, in which the court decided that: [28] Where a court is asked to exercise the authority under s. 216(3) by varying (or suspending or terminating) a parenting interim order already made, the court can properly start from the assumption that the interim order reflected the child's best interests insofar as those could be discerned at the time of the previous order. It is for this reason that s. 216(3) and (4) focus the court's attention on whether there is a change or new evidence since the previous order, and, if there is, on the factors in s. 216(4). Those factors relate mainly to the timing of the application to vary in relation to the previous interim order and the trial; the purpose of the interim order; and the potential adverse effects on the parties of varying or not varying the interim order. [29] The factors for consideration under s. 216(3) and (4) thus do not expressly include the best interests of the child. Consistently with the long-standing approach, on interim applications, of protecting the status quo and providing short-term solutions until a closer and more complete examination is possible at trial, they require the court to focus on what, if anything, has changed or emerged since the interim order was made, and to consider whether the new facts or evidence warrant a further change over the short-term. In the circumstances to which s. 216(3) and (4) apply, a full assessment of the child's best interests is not usually possible. [30] But although the child's best interests are not as such among the s. 216(4) factors, they permeate the analysis under s. 216 in the following ways. [31] First, and as I have noted, the interim order sought to be varied will have been made in accordance with the child's best interests to the extent practicable (through the effect of s. 216(2) and s. 37(1)). [32] Second, a change in circumstances or new evidence will not be material, or sufficient to engage s. 216(3), unless it relates to the child's best interests. This is because the parenting issue in question will ultimately be determined solely on the basis of the child's best interests. [33] Third, some of the s. 216(4) factors implicitly require some consideration of the child's best interests, particularly since, as noted above, the order sought to be varied will have been made with the child's best interests firmly in view. These factors include: "the change in circumstances or the evidence, or both, referred to in subsection (3)" (s. 216(4)(a)); and "any potential adverse effect, on a party or a child of a party, of either making or declining to make an order . . ." (s. 216(4)(e)). [34] On the interpretation of s. 216 I have outlined, s. 216(3) creates a threshold for an application to vary an interim order. If there is a material change in circumstances or new evidence of a substantial nature and the threshold is therefore reached, the court will determine the application according to the factors in s. 216(4). The provisions of s. 216 therefore provide the complete basis and framework for an application to vary an interim order. [37] As subsequently found in R.R. v. S.L., 2016 BCSC 1230, when a court is faced with an application to vary or suspend an interim order, the focus is on protecting the status quo, unless there is a relevant change in circumstances or new evidence: at para. 67 [38] A change of circumstances or new evidence sufficient to engage s. 216 (3) must be material to the best interests of the children: B.K. v. J.B. at para. 40. [39] The evidence before the court on November 21, 2016, focused on J.'s relationship with William Worden, which was assumed to be ongoing by the affiants; the condition of the children following the allegedly irregular and inconsistent parenting time with their mother; and J.'s allegedly "chaotic" lifestyle and behaviour following separation. There was also then unrefuted evidence that J. was not returning the children to their father's care as the parties had agreed. Of course, in the absence of any reasons for judgment, it is impossible to say what evidence was determinative in the making of the Baird Order, particularly the requirement of parenting supervision. It is reasonable to conclude that supervision was ordered based on the allegation that J. had no fixed address, had failed to return the children to their father as agreed and was perhaps associating with individuals with a criminal past. [40] The change of circumstances since the Baird Order was pronounced, as now identified in the evidence, is that J. is resident in Nanaimo and has secure employment; that she is exercising parenting time on a regular, albeit imperfect, basis; that she is concerned about the children's well-being and wishes to be involved in decisions affecting their well-being; that her mental health is stable; and that she no longer has a relationship with William Worden. Furthermore, J. says that she indeed had a fixed address at the time of Baird Order and disputes most of the negative allegations of fact made against her in the October, 2016 affidavits of G. and R.L. [41] The allegations made by the parties against each other regarding the proper care of the children are concerning. However, I note that despite G.'s assertion of J'.s neglectful parenting under the Baird Order, no steps have been taken by him to reduce or terminate J.'s parenting time and, indeed, G. is not really overseeing that parenting time. [42] I find that J. has met the threshold test of presenting a change of circumstances relevant to the best interests of the children since the Baird Order was made. [43] Turning to the s. 216(4) factors, it has been eight months since the Baird Order was made. Although the order was made for the purposes of having a temporary arrangement in place regarding parenting, the fact that J. was given liberty to set aside its terms means that the court did not consider the order to be necessarily the interim arrangements prevailing until trial. The requirement of supervision of J.'s parenting and giving G. all parenting responsibilities will certainly adversely affect the position of J. during negotiations and at trial. It is more difficult to discern the adverse effect on G. if J.'s sought after order is made; after all, G. was content to share parenting with J. following their separation. G's main concern appears to be J.'s relationship with Mr. Worden and the behaviour J. exhibited during or as a result of that relationship. [44] In assessing the potential adverse effect on the children in making or declining to make the order sought, the court should look to the factors under s. 37(2) of the FLA, while accepting that a full assessment of those interests is not possible as this juncture: C.K.G. v. C.D.G. 2017 BCSC 1233 at para. 17. That is particular so in this case where there is no objective evidence (for example, a s. 211 report) that addresses the children's best interests. [45] According to the evidence, at least P.'s emotional health is suffering under the present parenting arrangements. Again, the parties blame each other for this circumstance. The children's views are not known and, regardless, L. is far too young to offer any insight on the parenting arrangements. Although the evidence is in conflict, it can be discerned that neither party was consistently the children's primary caregiver during the latter part of the marriage and immediately following separation. The children need stability and certainty in any parenting arrangement. There is a history of family violence, which both parties admit was witnessed by the children. Who initiated that violence is disputed. The parties acknowledge that there continues to be ill-will between them making communication difficult and fraught with conflict. On the other hand, conflict arises because G. is making decisions about the children's health and well-being without J.'s involvement or input. Conflict also arises in the context of J. exercising her parenting time at the home of G. and G's parents. [46] Considering all of these factors, I have concluded that the best interests of the children justify a variation of the Baird Order such that J.'s parenting time need no longer be supervised and that the parties share parenting responsibilities in accordance with a Joyce model order. [47] What the evidence does not address, however, is how J. can manage a shared parenting arrangement even if introduced on a graduated basis. The evidence does not address J.'s working hours, except to say that she is working full-time. The evidence does not address the time required by J. to commute to her job in Port Alberni and how that would impact her ability to parent the children on a week on/week off basis. [48] This means that J.'s parenting time will continue on the terms agreed to in the JCC order but may occur away from 6223 Elm Road in Lantzville, B.C. As a result, the specific days for J.'s parenting time must still be agreed to two months in advance. The evidence does not address whether there is an agreement in place for the upcoming two months. [49] In order to address an ongoing source of conflict and to promote the children's best interests, I also order that the following individuals shall not be present during J.'s parenting time: William Worden, Rob Stewart, Samantha Barton, Jennifer New and Steve McManus. This term of the order is made out of an abundance of caution. J. now says that her relationship with William Worden is almost non-existent, but the April 2017 Quality Foods application raises doubts about the veracity of that assertion. Regardless of any historical criminal conduct on the part of Mr. Worden, his association with J., whether past, present or in the future, is the main source of antagonism between the parties. It appears from the evidence that J. met the other individuals identified in the order through her association with Mr. Worden and these relationships are also a source of conflict between the parties. [50] I find that the best interests of the children are served substituting that portion of paragraph 2 of the Baird Order with respect to parental responsibilities with this order: For the interim period, the parties shall share equally all of the s. 41 parental responsibilities for the two children under s. 40(2) of the FLA, pursuant to the Joyce model as follows: 1. In the event of the death of a guardian, the surviving guardian will be the only guardian of the children; 2. Each guardian will have the obligation to advise the other guardian of any matters of a significant nature affecting the either one or both of the children; 3. Each guardian will have the obligation to discuss with the other guardian any significant decisions that have to be made concerning either one or both of the children, including significant decisions about the health (except emergency decisions), education, religious instruction and general welfare; 4. The guardians will have the obligation to discuss significant decisions with each other and the obligation to try to reach agreement on those decisions; 5. In the event that the guardians cannot reach agreement on a significant decision despite their best efforts, the guardian with the majority of parenting time with the children will be entitled to make those decisions and the other guardian will have the right to apply for directions on any decision the guardian considers contrary to the best interests of the child or children, under s. 49 of the Family Law Act; and, 6. Each guardian will have the right to obtain information concerning the children directly from third parties, including but not limited to teachers, counsellors, medical professionals, and third party care givers. [51] The variation of the supervision provisions under the Baird and JCC orders and the variation of the Baird Order with respect to parenting responsibilities will be effective August 8, 2017. These new terms will be in place pending trial or written agreement between the parties. [52] The order sought by J. for [interim] joint guardianship is, in my view, misconceived at this point. Both parties are presumed to be guardians of the children pursuant to s. 39 the FLA and no order of the court to that effect is necessary. However, it may be that such an order is appropriately made at trial if relief is sought pursuant to the Divorce Act in J.'s pleadings. The pleadings were not before me so I am unable to determine whether that is the case. Thus, this aspect of J.'s application will be adjourned to trial. [53] The application that G. pay child support to J. is dismissed as the children's primary residence will be unchanged. [54] The application for payment of occupational rent by G. to J. is without any evidentiary basis and is also adjourned to trial. [55] J.'s application for an order for exclusive occupancy of the family home will be addressed below. II. The Claimant's Application A. Interim Sale of the Family Home [56] SCFR 15-8 provides that: Court may order sale (1) If in a family law case it appears necessary or expedient that property be sold, the court may order the sale and may order a person in possession of the property or in receipt of the rents, profits or income from it to join in the sale and transfer of the property and deliver up the possession or receipt to the purchaser or person designated by the court. [57] Factors to consider in the exercise of the court's discretion under this Rule include whether the sale will promote early settlement, whether the sale will defeat a spouse's claim for reapportionment, whether the sale is inevitable or whether a spouse might be able to retain the property on a division of assets. An interim sale will be considered expedient if it is advantageous to both parties: N.N.N. v. D.E.B. 2016 BCSC 1778 at para. 21. [58] The evidence before the court, especially from the applicant who bears the onus of proof, is very thin on this issue. G. has not demonstrated that an interim sale of the home is necessary. There is no evidence that the property is wasting or at risk of being sold in a foreclosure. There is no evidence as to why G. is not occupying the home with the children, although he obviously has no intention of doing so regardless of the outcome of his application. [59] Nonetheless, based on the parties' financial circumstances, the sale of the home appears to be inevitable. The only reason for not allowing the sale of the property is the request by J. to have exclusive occupancy pending trial. J. does not put forward a realistic plan to purchase G.'s interest in the property. J. does need to occupy the home for financial reasons as her current housing costs are less than what she would spend in maintaining the family home. If she were to occupy the home, J. requires financial assistance from a third party, but renters are not permitted and the evidence with respect to Dr. Bruno's assistance is simply insufficient to address these cost concerns. Although realtor's fees and other costs will erode the present equity in the property, allowing J. to assume the cost of maintaining the mortgage and other property related expenses pending trial requires too big of a leap of faith in her ability to do so. Occupancy of the family home is not necessary for the purposes of J. parenting the children, nor is there any evidence that such occupancy by J. is in the children's best interests. There is a possibility that the sale of the family home will promote settlement in that this source of conflict between the parties will be eliminated. [60] Accordingly, despite the frailty of the evidence, I will order the interim sale of the family home on the terms set out in in paragraphs 1 through 4 of G.'s notice of application. It follows that J.'s application for interim exclusive occupancy of the family home is dismissed. B. Child Support [61] G. did not specifically argue the issue of child support. It is not clear to me whether an order is being sought in that regard. In these circumstances, that aspect of the G's notice of application is adjourned generally. Costs [62] Given the divided success of the parties on their respective applications as well as the inadequacy of the materials before the court, the parties shall bear their own costs for these applications. "C.P. Bouck" Master C. P. Bouck [1] For example, the claimant cites Parts 5 and 7 of the FLA as his Legal Basis but neglects to cite SCFR 15-8 which governs the interim sale of family property. The order sought by the claimant does not invoke Part 7 of the FLA. The respondent references provisions of both the Divorce Act and the FLA but neglects to identify how some of those provisions support the relief sought. [2] The notice of application actually seeks an order that the parties "share joint guardianship" of both children and then lists the guardianship rights to be shared. The proposed order appears to be an order that might be granted under the Divorce Act on a shared custody arrangement. The notice of application seeks a separate order for the sharing of parental responsibilities under s. 41 of the FLA.