Court File and Parties
COURT FILE NO.: FS-11-73113-00 DATE: 2020 03 30 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: VIRGINA BAIJNAUTH, Applicant AND: DEWAN BAIJNAUTH, Respondent
BEFORE: Justice L. McSweeney
COUNSEL: C Bowman, for the Applicant Self-Represented, for the Respondent
HEARD: In Writing
Endorsement
1The regular operations of the Superior Court of Justice have been suspended until further notice as a result of the serious health risks posed by COVID-19.
2The Applicant Virgena Baijnauth filed a request for an urgent motion on March 25, 2020 pursuant to the Superior Court of Justice Notice to the Profession dated March 15, 2020.
3The Notice can be found at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.
4I was assigned by the Local Administrative Judge in Brampton to determine whether the matter is urgent within the meaning of the current COVID related protocols.
Is this matter urgent?
5I have reviewed the Notice of Motion and the unsworn affidavit of the Applicant dated March 24, 2020. The Applicant states she obtained judgment against the Respondent in their family law trial. She contends that he has not paid the judgment, and that she has been unable to enforce against another property he owns because the Respondent transferred title to their son to frustrate her efforts to do so.
6As a result, the Applicant states that she will not be able to discharge a high-interest mortgage on the matrimonial home, which is coming due March 31, 2020 and which cannot be renewed.
7Therefore on this urgent motion the Applicant asks the court to grant a “vesting order” and transfer the Respondent’s interest in the matrimonial home free and clear so that she can obtain the needed re-financing to pay off the high-interest mortgage.
8The urgency is that the Applicant states that the full amount of the high interest mortgage is coming due on March 31, 2020, the lender will not agree to any terms of extension. If the vesting order is granted, she states that she will be able to obtain re-financing and pay off the high-interest mortgage. She states that she has made extensive efforts to resolve this matter with the Respondent to no avail, and is now therefore required to bring this motion.
9My view, based solely on the Applicant’s unsworn affidavit and exhibits, is that there does appear to be some urgency. That is, deferring consideration of this matter until some unspecified time in the future, after the COVID restrictions are past and the courts are reopened for business, could cause significant financial hardship to the moving party including her ability to afford to keep her home, despite being owed enough money to do so. I am prepared for this reason to convene a hearing by conference call on the timeline described further below.
10I note that this preliminary determination is without prejudice to the Respondent’s right to oppose the hearing of the motion as a matter of urgency and to take the position that it should not be heard in this period of suspended court activity.
Timing of conference call hearing
11Having made a preliminary determination of urgency, I must determine an appropriate timeline on which to hear this matter in view of the court’s requirement to have necessary materials before it to make a decision on the relief requested, and to ensure that both parties have an opportunity to be heard.
12The Respondent in this matter must of course have an opportunity to file responding materials with respect to the alleged urgency of this matter, and on the merits of the relief sought. My review of the materials filed by the Applicant confirms that the Respondent has not had that opportunity yet.
13An affidavit of service was provided to the court, at my request, on the afternoon of, March 27, 2020. It indicates that the Respondent was not served with the motion record until March 26, 2020. On that date the Respondent’s common law spouse was at home and accepted service on his behalf. The Form 14 Notice of motion states that the hearing date is “March 25 at 10 am” [i.e. the day before service] and that his response was due “no later than 4 days prior” to the day of the scheduled hearing of the motion.
14The Respondent is obviously not able to comply with the Notice of Motion served on him, which is misleading. The Applicant’s materials give him no guidance as to what he must do, and by when. Nor do they make reference to any Rules or statute as the legal basis of the relief sought.
15I am concerned with the Applicant’s non-compliance with the court’s direction that all filing, including under the current new protocols, be accompanied by proof of service, and that service precede filing.
16The court should not be put to the effort to “track down” whether service has been effected. Service on responding parties in order to ensure they have an opportunity to respond is not a procedural requirement to be dispensed with, or taken less lightly, while matters are proceeding in a new manner due to COVID safety protocols and concerns.
17While I appreciate that this matter is very important to the Applicant, she has not assisted herself in having it dealt with quickly by the manner and timing of Notice provided to the Respondent. The relief she seeks is of significance to the Respondent: she asks the court to take him off title to a home he currently co-owns.
18Balancing its preliminary view of the urgency of this matter and the Respondent’s right to respond, the Court therefore provides the following information and timelines to the parties:
TIME AND DATE OF TELECONFERENCE HEARING:
(1) A teleconference to hear the matter is being arranged for: Thursday April 2, 2020 at 10:30 am for a Maximum 1 hour; the parties are directed to call-in as described below by 10:20 am, and to do so from a quiet location where their full attention is directed to the teleconference.
(2) The call-in instructions for the teleconference hearing are as follows: 416-212-8013 OR 1-866-633-1033 Conference I.D.: 3454279
(3) If either party has a compelling reason why he or she cannot be available Thursday April 2, 2020 at 10:30 am, they should advise the Court by 10:00 am on March 31, 2020.
DIRECTIONS TO THE PARTIES PRIOR TO THE TELECONFERENCE:
To the Respondent Dewan Baijnauth:
19You are required to immediately confirm by email that you have received this communication from the Court. Your email is to be sent to: SCJTrialofficeBrampton@ontario.ca and copied to Ms. Bowman, counsel for the Applicant.
20If you wish to oppose the motion, or argue that it does not raise urgent issues, you must take the following steps:
21Not later than Wednesday April 1, at 2:00 pm: you or a lawyer acting for you shall serve and file by email any affidavit evidence on counsel for the Applicant, and file it by emailing it to the Court at SCJTrialofficeBrampton@ontario.ca. You must also provide to the court by that date with proof of service on the Applicant.
22Not later than Wednesday April 1, at 2:00 pm: you or a lawyer acting for you shall serve the Applicant’s counsel, and file with the court by the same manner as in [21] above, a list of the court cases or other law, with hyperlinks, that you intend to refer to at the teleconference hearing.
23Please note that if you, the Respondent Dewan Baijnauth, do not respond to this motion and/or request to proceed on an urgent basis, an order may be made in your absence at or following the teleconference hearing.
To the Applicant Viginia Baijnauth:
24By Tuesday March 31, 2020, at 11:00 am: the Applicant is directed to serve the Respondent by email or fax and file with the Court:
(a) a copy of any additional prior court order or endorsement (not including those already filed as attachments to the moving party’s affidavit) that is relevant to the relief being sought; (b) a draft copy in Word format of the order sought; (c) a copy of the “Anand mortgage” document executed by the Applicant and referred to in the Applicant’s affidavit as maturing March 31, 2020; (d) a brief written argument specifying the rules of court and statutory authority for the relief being sought; (e) scanned copies or hyperlinks to any statutory authority other than the Rules of court and any cases or other authorities you rely on in support of your motion; and (f) proof of service of the above.
25All parties are reminded that if an affidavit cannot be sworn or affirmed before a Commissioner for taking oaths (including any lawyer or paralegal licenced to practice in Ontario), the person making the affidavit must participate in the teleconference with the presiding judge and be prepared to swear or affirm the truth of its contents at that time.
INFORMATION TO SELF-REPRESENTED PARTIES:
26If you are presently self-represented and:
- wish to retain a lawyer, a directory of local Halton lawyers is available at https://haltoncountylaw.ca/membership-directory/ and local Peel lawyers at https://www.plalawyers.ca/member-directory.html;
- wish to retain a lawyer for only a limited scope of service, including just for this motion, you may seek the name of lawyers who accept such limited scope retainers at the Law Foundation of Ontario’s Family Law Limited Scope retainer Project at https://www.familylawlss.ca/
27If you choose not to retain a lawyer, information regarding court procedures is available as follows:
For Family Law matters:
- You may consult the Law Society of Ontario’s emergency family law referral telephone line. This service will connect self-represented persons with family lawyers, working on a pro bono (free) basis. Those lawyers will provide up to 30 minutes of legal advice specific to determining whether or not a person’s family court matter is urgent and make referrals to other available legal services.
[28] Self-represented persons may contact the Law Society emergency family law referral telephone line by phone at the following numbers: Toll-free: 1-800-268-7568 General: 416-947-3310
A link to the Superior Court of Justice’s website offering information about the documents that must be filed to bring a family law motion and what will happen during that motion can be found at: https://www.ontariocourts.ca/scj/news/publications/guide-family/#Motions
A link to the Family Law Rules, and in particular Form 14A – Affidavit, can be found at https://www.ontariocourts.ca/scj/family/legislation-forms.
Legal Aid Ontario: you may call 1-866-874-9786 or 416-204-7104 for assistance, although it is likely that only limited services are available for litigants who do not qualify financially for Legal Aid Services. There may be an exception for cases that involve domestic violence.
For Civil (Non-Family Law) Matters:
29Pro Bono Ontario has a hotline (1-855-255-7256) for self-represented litigants with civil (non-family law) matters where they may obtain summary advice and drafting assistance from dedicated lawyers at no cost. Those services are subject to change but are presently available from Monday – Friday between 9:30 -11:30 am and 1:00 - 3:30 p.m.
DIRECTIONS RE DISTRIBUTION OF THIS ENDORSEMENT:
30This endorsement is being distributed to the parties by: (1) by email to Applicant’s counsel and to Respondent’s previous counsel, Ms Buchan; and (2) by fax to both Applicant’s counsel and Respondent (via fax to 905-671-3332, which number was provided to the court March 27, 2020 by Applicant counsel).
31Parties have leave to serve each other by email or fax in view of the timelines. However, all filing with the Court, pursuant to the Notice to the Profession, must be made to the Superior Court of Justice Trial office by email at: SCJtrialofficeBrampton@ontario.ca.
McSweeney J.
DATE: March 30, 2020