Court File and Parties
Court File No.: FC-20-55545 Date: 2020-04-21
Superior Court of Justice - Ontario
Re: Lori Elizabeth Grant, Applicant And: Shawn David Grant, Respondent David Gregory Grant, Respondent Verna Marie Grant, Respondent
Before: Madam Justice L. Madsen
Counsel: None
Heard: In Chambers
Endorsement – COVID-19 Protocol
[1] AS A RESULT OF COVID-19, the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/. In accordance with that Notice, only urgent matters are being heard at this time.
[2] The Notice of the Chief Justice provides that “urgent and emergency” matters shall continue to be heard by the Superior Court of Justice during the suspension of operations due to COVID-19, and that urgency is “as determined by the presiding justice.” The Notice specifies that such matters may include “dire issues regarding the parties’ financial circumstances…” This preliminary determination of urgency is an exercise of judicial discretion.
[3] Determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself. A determination of urgency is not intended to be a motion unto itself and is intended to be simple and expeditious.
[4] Ms. Grant filed the following documents by email to the Superior Court, in support of her ex parte urgent motion. Upon the resumption of normal court operations, counsel shall file the materials in the Continuing Record:
a. Notice of Motion dated April 20, 2020; b. Affidavit of Lori Grant sworn April 20, 2020; c. Bill of Costs; and d. Draft Order.
[5] The motion has not been served as Ms. Grant seeks relief on an ex parte basis.
[6] In her materials, Ms. Grant seeks:
a. exclusive possession of the home and contents, owned 99% by her and Mr. Grant, and 1% by Mr. Grant’s parents; b. sole authority to sign an Agreement of Purchase and Sale in relation to the family home, and any related documents; c. that the Respondent, Mr. Shawn Grant, be responsible for half the carrying costs of the home from July 17, 2019 to the date of the completion of the sale; d. that the net proceeds of sale be held in trust until equalization calculations are completed and until further order of the court; and e. costs of the motion.
[7] For the reasons set out below I find that this matter is urgent and should be referred to another judge for determination. In reaching that conclusion I have considered the applicable caselaw including but not limited to: Thomas v. Wohleber, 2020 ONSC 1965 and Baijnauth v. Baijnauth, 2020 ONSC 1974, which establish principles including the following:
a. To be an urgent matter within the meaning of the Notice to the Profession, the concern must be immediate, serious, definite rather than speculative, and clearly particularized; and b. A matter may be found to be urgent where deferring consideration to some unspecified time in the future, after COVID-restrictions have passed and the courts are reopened for business could cause significant financial hardship to the moving party.
[8] On the materials filed by Ms. Grant, she requires authority to sell the parties’ home because she has been paying all of the expenses without contribution from Mr. Grant; she has been laid off from her two part-time jobs because of the COVID-19 crisis; Mr. Grant is addicted to drugs and alcohol and has not worked since the summer of 2019; and Mr. Grant has on three occasions agreed to sell the home but then rejected reasonable offers to purchase.
[9] Further, Ms. Grant states that Mr. Grant was arrested in November 2019 for assaulting her and a condition of his bail was that he not attend the home or communicate with her. However, on February 27, 2020, he entered the home and vandalized it by breaking windows and “trashing the interior.” Mr. Grant was arrested and released with a further condition that he not attend the home or communicate with her. Ms. Grant states that on April 16, 2020, Mr. Grant again entered the home in breach of his bail, and was arrested. He has again been released with a condition that he not attend the home or communicate with her. He has thus been arrested and charged three times.
[10] As the matter was brought ex parte, the Respondents’ perspectives on those allegations is not known.
[11] Ms. Grant states that the most recent prospective purchaser of the home is prepared to renew its offer to purchase the home if she is authorized to complete the transaction without the involvement of Mr. Grant or his parents.
[12] Applying the Notice to the Profession and the caselaw on this issue, I find that this motion is urgent and should be heard forthwith, with the benefit of the evidence of all parties. The potential harm set out by Ms. Grant is immediate and serious. Waiting until after COVID-19 restrictions are lifted to address this matter could cause significant hardship.
[13] However, the materials must be served. As set out by Justice McSweeney in Baijnauth v. Baijnauth, cited above, “Service on responding parties in order to ensure that they have an opportunity to respond is not a procedural requirement to be dispensed with, or taken lightly, while matters are proceeding in a new manner due to COVID-19 safety protocols and concerns.” See para. 16.
[14] In light of the allegations and my concern arising from Mr. Grant’s attendances at the home despite the court orders that he not do so, there shall be a temporary temporary without prejudice order granting Ms. Grant exclusive possession of the property located at 7 McBean Street, effective immediately. Although it was not requested, but as a precaution, I am also granting a temporary temporary restraining order which provides that Mr. Grant shall not attend within 100 metres of the property until further court order. These orders are intended to ensure Ms. Grant’s safety and security pending the return of the motion on the timeline set out below.
[15] Accordingly, I set out the following process:
a. Ms. Grant shall have until Friday April 24, 2020 at 4:00 p.m. to serve her motion materials and a copy of this Endorsement on all three Respondents, and the restraining Order on Shawn David Grant, and to file an Affidavit of Service with the court; b. The Respondents shall have until Wednesday April 29, 2020 to serve and file responding materials. They shall be served by email to Ms. Grant’s counsel at thrasher@matlowmiller.com; c. Ms. Grant shall have until Friday, May 1, 2020 at 4:00 p.m. to serve and file Reply materials, if any; d. All materials shall be filed with the court at Kitchener.Superior.Court@ontario.ca with the style of cause and file number in the subject line of the email. Service of all materials related to this motion may be done by email among the parties; e. This motion will be heard by teleconference no later than Friday May 8, 2020 at a time to be determined by the Trial Coordinator. The Trial Coordinator will advise counsel for both parties by email of the call-in details.
[16] Court staff are requested to serve counsel for Ms. Grant with a copy of this endorsement by email.
[17] Notwithstanding Rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and is enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so and submit materials by Form 14B Motion Form to the court.