COURT FILE NO.: 12-118
DATE: 20121217
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROSS GERRARD CRUIKSHANK
Applicant
v.
JOHANNE DENISE BASTIEN
Respondent
BEFORE: CONLAN J.
COUNSEL: Timothy Flannery, for the Applicant
Johanne Bastien, in person
E N D O R S E M E N T
Conlan J.
Introduction
[1] The Applicant, Mr. Cruickshank, brings two Motions.
[2] The first Motion, dated November 30, 2012, seeks the following relief.
An Order that the within matter, Court File No.: 12-118, be combined with the matter of Johanne Denise Bastien, Applicant and Ross Gerard Cruikshank, Respondent, an Application Record with Court File No.: 12-037 also filed in the Owen Sound Ontario Superior Court of Justice, pursuant to Family Law Rule 1(5), and Family Law Rule 7 as well as Rule 5 of the Rules of Civil Procedure dealing with joinder of claims.
An Order that the time for service of the within Motion and materials for service be abridged pursuant to Rule 3(5) of the Family Law Rules.
An Order that the lands and premises municipally known as 774, 776, and 778 Second Avenue East, Owen Sound, Ontario, and more particularly described as: North Part of Lot 14, W/S Poulett St. City of Owen Sound, County of Grey, Land Titles Division of Grey (No 16) (hereinafter “the property”) be partitioned and sold.
That the sale of the property be completed dispensing with the signature of the Respondent Wife, Johanne Denise Bastien (previously known as Johanne Denise Cruikshank) and that the proceeds of any sale be paid in trust to either the trust account of Horton & Horton, Owen Sound solicitors, if they become solicitors of record in this new combined proceeding, or, Timothy C. Flannery in trust thus varying the Order of Mr. Justice Herold dated April 19th, 2012 and that such funds be held in trust pending further agreement or court Order between the parties as to the equalization of their net family properties.
An Order that costs of this Motion on a substantial indemnity scale together with applicable HST thereon in accordance with the Excise Tax Act R.S.C. 1995 c.E-15, as amended.
Such further and other relief as counsel may advise and This Honourable Court may permit.
[3] The second Motion, dated December 7, 2012, seeks primarily an Order that specified property and any proceeds of sale of that property be preserved pending a final resolution of Mr. Cruickshank’s Application (sometimes referred to colloquially as a non-depletion of assets Order). That relief was granted by a Temporary Order made by me at court on December 12, 2012. The Order applies equally to both parties and is limited to the property specified at clause 1 of the relief sought in Mr. Cruickshank’s December 7, 2012 Notice of Motion and any proceeds of sale related thereto.
[4] At the conclusion of submissions by counsel and Ms. Bastien at court on December 12, the Court reserved its decision on the issues raised in the first Motion.
Analysis
[5] There are two contentious issues to be decided with regard to the Motion dated November 30, 2012.
Should the Family Proceeding be Consolidated or
Combined with the Civil Proceeding for Partition and Sale?
[6] The family proceeding was commenced by Mr. Cruickshank’s Application issued on April 19, 2012. That Application is limited to property issues.
[7] On that same day, and pursuant to an independent Application for partition and sale brought by Ms. Bastien prior to April 19, 2012, Justice Herold issued two Judgments dealing with real property owned jointly by the parties. For ease of reference, copies of those two Judgments are attached to this Endorsement as Schedules A and B.
[8] The Court’s authority to combine the two proceedings is found in Rule 12(5) of the Family Law Rules and, by virtue of Rule 1(7) of the Family Law Rules, by analogy to Rule 6 of the Rules of Civil Procedure.
[9] I am satisfied that the Judgments of Herold J. did not finally dispose of Ms. Bastien’s Application for partition and sale. In reality, the Judgments are Orders made in the context of that Application. The wording of the Judgments clearly contemplates that “the cause” remains outstanding; that there may have to be a trial of the Application; and that further Orders regarding the Application may become necessary.
[10] Thus, it is clear that there is something left to that civil partition and sale proceeding that may be consolidated with the family case.
[11] Rule 12 of the Family Law Rules is not very instructive. It merely states that the test for combining cases is one of convenience.
[12] Rule 6 of the Rules of Civil Procedure is more detailed. I resort to that Rule by analogy for assistance.
[13] The two proceedings clearly have questions of law and fact in common: 6.01(1)(a). The civil Application for partition and sale deals with jointly owned property which is the subject of the within family law proceeding.
[14] Further, under Rule 6.01(1)(c), the other reason to consolidate the two proceedings is to respect the general principle that multiplicity of related cases ought to be avoided where possible. The rationale underlying that general principle includes the goal of avoiding different Justices dealing with the same or similar issues in different proceedings at various times, resulting in a risk of, among other things, inconsistent rulings.
[15] Mr. Cruickshank has established on balance the test for combining or consolidating these two proceedings. So ordered. Court File No. 12-118 shall be combined or consolidated with Court File No. 12-037. Pursuant to Rule 1(5) of the Family Law Rules, this Court orders that the Family Law Rules shall apply to the combined case.
[16] I reject the argument by Ms. Bastien that consolidation will force her to represent herself while, currently, she has counsel on the civil proceeding for partition and sale. That argument may have had more weight if the Application by Mr. Cruickshank in the within family case involved issues other than property ones. It does not. In the circumstances, I fail to see any prejudice to Ms. Bastien. In fact, she is better off having the matters combined.
Should Ms. Bastien’s Signature on Documentation Required to Sell Property
Owned Jointly by the Parties be Dispensed With?
[17] Frankly, I suspect that Ms. Bastien is being unreasonably difficult in not agreeing to the proposal put forward by Mr. Cruickshank that he purchase the property at, on the face of the materials filed on the two Motions before me on December 12, 2012, what appears to be a reasonable price.
[18] Out of caution, however, and notwithstanding the urgency of the situation given the pending power of sale issue, I decline at this time to make the Order requested by Mr. Cruickshank. The Court needs to hear, in a more fulsome manner, why Ms. Bastien will not agree to what Mr. Cruickshank has offered. The details of Ms. Bastien’s position in that regard were not before the Court in the materials filed on these two Motions. They need to be before the Court is willing to grant the rather serious and extraordinary remedy sought by Mr. Cruickshank.
[19] This Court directs that the matter shall return to court before me at the convenience of the parties and counsel but without undue delay. That further court attendance shall be devoted solely to the issue of whether Ms. Bastien’s signature ought to be dispensed with to effect a sale of the property in question, owned jointly by the parties. There shall be no further Motions or requests by either party entertained on that return date.
[20] Prior to that return date, which shall be arrived at by counsel contacting the trial coordinator in Owen Sound, Mr. Cruickshank shall serve and file evidence setting out precisely what sale of the property he intends to pursue. In response to that and prior to the return date, Ms. Bastien shall serve and file evidence setting out precisely why she opposes that sale of the property proposed by Mr. Cruickshank.
[21] On the return date, each party shall be limited to 15 minutes for submissions.
Conclusion
[22] Mr. Cruickshank has been successful on the consolidation issue. He was also successful in obtaining an Order preserving property. He is entitled to costs. If the parties cannot settle the matter of costs, we shall discuss that on the return date.
Conlan J.
DATE: December 17, 2012
COURT FILE NO.: 12-118
DATE: 20121217
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROSS GERRARD CRUIKSHANK
Applicant
v.
JOHANNE DENISE BASTIEN
Respondent
BEFORE: CONLAN J.
COUNSEL: Timothy Flannery, for the Applicant
Johanne Bastien, in person
ENDORSEMENT
Conlan J.
DATE: December 17, 2012