Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Sheri Lynn Chateauvert, Applicant
AND:
David William Chateauvert, Respondent
BEFORE: Kurz J.
COUNSEL: Gary S. Joseph, Counsel for the Applicant
Erika MacLeod, Counsel for the Respondent
HEARD: November 27, 2018
ENDORSEMENT
The Issue
1This a motion brought by the Applicant wife, Sheri Lynn Chateauvert (“the wife”), for relief prior to a first case conference in this proceeding. She seeks:
a. leave to bring this motion on an urgent basis prior to that conference;
b. a restraining order against the Respondent husband under s. 46 of the Family Law Act;
c. exclusive possession of the parties’ jointly owned primary matrimonial home, municipally described as 76 Heritage Lake Drive, Puslinch, Ontario. (“the Home”); and
d. an order for the immediate partition and sale of that home.
2The wife argues urgency in seeking this relief before the case conference ordinarily required by R. 14(4).1 That conference is scheduled to be heard on January 21, 2019.
3In support of her claim to a temporary restraining order, the wife points to her fear of the husband. She describes an alleged pattern of angry and erratic behaviour that he directed at her. She points to some angry and concerning texts and emails that he sent to her and her relatives as well as concerns that he tampered with certain elements of the matrimonial home after he left it. She also accuses him of abusing alcohol. The wife sees this alleged behaviour through a lens sharpened by what she describes as a history of abuse in a prior relationship.
4The wife relies on many of the same facts to seek exclusive possession of the Home. That issue is not contested by the husband, who moved out of the Home this past summer.
5With regard to the immediate sale of the Home, where she has little genuine claim to immediate urgency or hardship, the wife offers an innovative alternate argument. She contends that her motion should be heard before a case conference for what R. 14(4.1) describes as a “reason in the interest of justice” other than urgency or hardship. She argues that partition and sale is a forgone conclusion. The husband has already pleaded that he seeks the immediate sale of the Home. She rhetorically asks what the point would be of delaying the sale that he has already demanded in his pleadings. To delay the inevitable would, she asserts, violate the primary objective of the Family Law Rules (“FLR”), to enable to court to deal with cases justly.
6While the husband agrees to an order granting the wife exclusive possession of the Home that he has already vacated, he opposes the remaining relief sought by the wife. In light of his exclusive possession concession, he argues that there is no reason to find urgency or hardship in this case. He admits that he said some things in anger in the weeks immediately following the parties’ separation. Those statements could raise concerns, but only if viewed in isolation rather than their proper context. They have not been repeated in the months since he made them.
7The husband denies that he abuses alcohol or did anything untoward in regard to the elements of the Home. He points out that there is little to no independent evidence to support the wife’s claims in that regard. He asserts that when it comes to alcohol abuse and erratic, even violent behaviour, it is the wife who has the substance abuse and anger management issue.
8With regard to the sale of the Home, the husband offers a varied and shifting set of rationales for resisting the very relief that he claimed in his own pleading. In essence, he feels that the immediate sale of the Home is premature prejudicial to him. He wants the court to wait, not simply for the conclusion of the case conference, but for some other unspecified future time that may well be the trial, so that he can make his own bid to buy the Home.
9On consent, I grant the wife interim exclusive possession of the Home. For the reasons set out below, I find no urgency with regard to the claim for a restraining order or partition and sale of the Home. However I do find that my consideration of the partition and sale request is, in the particular and unusual circumstances of this case, in the interests of justice. I order the partition and sale of the Home, but leave it to the parties to attempt to work out the terms before or at a case conference. Failing that, this motion may return before me for a determination of the terms of the sale.
Background
10The parties engaged in a relationship of just over five years. They began to cohabit on March 27, 2013. They married on December 19, 2013 and separated on May 31, 2018. This is the second marriage for the wife and third for the husband. They have no children of their relationship, although each spouse has an adult child of a previous relationship. While each party holds a substantial administrative job that pays a six-figure income, the wife earns far more than the husband.
11The parties jointly own two matrimonial homes. The Home is their primary matrimonial home. The parties purchased the Home in May, 2014. Their other matrimonial home is a cottage that remains available to both parties (“the cottage”).
12Each party makes broad allegations of controlling and erratic behavior by the other. The allegations include excess alcohol consumption by the other during the course of the relationship. There is no objective evidence to verify either party’s claim in that regard.
13While there is no agreement on the exact date of separation, it appears that the parties separated on or about May 15, 2018. On that date, the wife told the husband by long-distance telephone call that she wanted to end their relationship. At the time she was in Boston, attending a seven-week management training course at Harvard University.
14The husband did not share the wife’s desire to separate. He was bitter and upset about the wife’s decision. In the immediate aftermath of the separation, he reacted badly in comments that were made to the wife and her family. The wife takes it further and contends that the husband actually sabotaged elements of the Home, including its home security and water systems. She adds that that alleged sabotage made her cohabitation in that home both precarious and fearful. That is a key reason that she wishes to sell the Home. She claims that the issue of a restraining order is an urgent one because of her fear that the husband will harm her. I will have more to say about both the alleged urgency of this matter and the evidence that the wife relies upon in support of a restraining order below.
15At first following the separation, the parties agreed to continue sharing the Home by alternating their time in it. The wife wished to stay away from the Home while the husband was there. The husband ultimately moved out of the Home on August 26, 2018, a bit more than three months following their separation date. He first moved into the Cottage. Then, on October 1, 2018 he rented his own apartment, where he now lives.
16The parties have been discussing the notion of selling the Home for some time but have been unable to agree on the terms of a sale. They even obtained appraisals of its value for a potential buy-out of the Home by the wife.
Litigation History
17The wife commenced this proceeding on August 1, 2018. In her application, prepared by her present counsel, the wife pleads many of the alleged facts that she relies upon in seeking a temporary restraining order. Yet she does not request that relief in her pleading. Instead, she seeks, among other relief, exclusive possession and sale of Home.
18In his answer, dated August 29, 2018, the husband, pleads that he agrees with the wife’s claim to the sale of family property but disagrees with her claim to exclusive possession. He goes on to request the sale of the Home under both the Partition Act and the Family Law Act, so that he can access his equity in the Home.
19The parties later came to reverse many of their pleaded positions by 180 degrees. The wife’s lawyer abandoned her request for exclusive possession in a letter to opposing counsel, only to later reclaim it in this motion. The husband once opposed that relief but no longer does so. However he now opposes the partition and sale of the Home that he sought in his answer.
20The wife indicated that she was no longer seeking exclusive possession of the Home in the August 29, 2018 letter of her lawyer, Gary Joseph. Mr. Joseph told the husband‘s lawyer, Erika MacLeod, that the wife was instead seeking to immediately sell the Home.
21One would have thought that with both parties agreeing to sell the Home, it would have been immediately listed and then sold. But despite requesting just that result in his pleadings, the husband would not agree to list the property or to name a real estate agent. He offered and continues to offer varying justifications for this reversal of his position.
22The parties arranged for a case conference date on January 21, 2019. But on October 16, 2018 the wife brought this motion, returnable two weeks later, on the basis of urgency. Her notice of motion made no reference to the interests of justice argument that she relies on in her argument of this motion.
23For his part, the husband brought a cross-motion seeking disclosure and leave to amend his pleadings before a case conference (to withdraw the claim for partition of sale of the Home and its rationale). His materials for that motion offered no justification for hearing it before a case conference. However it is clear that he was seeking these remedies in response to the wife’s motions.
24The night before the motions were to be heard before me, the wife’s counsel delivered a package with what appears to be substantially the disclosure requested by the husband. To be fair, the husband and his counsel did not have sufficient time to review it and comment about its completeness before this motion was argued.
25The wife has not explained why it took her so long to provide this disclosure when, as set out below, full disclosure was requested relatively early in the proceedings and the husband had identified non-disclosure as a reason for his opposition to the sale of the Home.
26The only relief set out in his notice of motion that the husband sought before me was leave to amend his statement of claim. I explain below why I do not grant that relief.
The Requirement of a Case Conference Before a Motion
27Rule 14(4) contemplates that no motions be brought before the parties attend a conference dealing with the substantive issues in the case. The only exception to that rule is found in R. 14(4.2), which states that R. 14(4):
…does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.
28The wife’s first argument is that hers is a situation of urgency with regard to both a restraining order and the sale of the Home. With regard to the sale of the Home only, she argues in the alternative that an order before a case conference is in the interests of justice.
The Purposes of a Case Conference
29Before I consider whether to allow the wife’s motion to proceed before a case conference, I will review the purposes of those conferences. Under R. 17(1), when an answer is filed in every non-child protection case, a judge shall conduct at least one conference.
30Rule 17(4) sets out the purposes of a case conference. It states:
PURPOSES OF CASE CONFERENCE
(4) The purposes of a case conference include,
(a) exploring the chances of settling the case;
(b) identifying the issues that are in dispute and those that are not in dispute;
(c) exploring ways to resolve the issues that are in dispute;
(d) ensuring disclosure of the relevant evidence;
(d.1) identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial;
(e) noting admissions that may simplify the case;
(f) setting the date for the next step in the case;
(g) setting a specific timetable for the steps to be taken in the case before it comes to trial;
(h) organizing a settlement conference, or holding one if appropriate; and
(i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate.
31Boiled down to their essentials, these purposes refer to the two fundamental functions of case conferences: early case resolution and early case management. Those two functions are essential to the ability of the court to meet the overall goals of the FLR, which are exemplified in their primary objective under R 2(2), to deal with cases justly. Under R. 2(4), the court is required to apply the FLR in order to meet their primary objective. The parties and their counsel are required to assist the court in doing so.
32Rule 2(3) clarifies that dealing with a case justly includes,
a) ensuring that the procedure is fair to all parties;
b) saving expense and time;
c) dealing with the case in ways that are appropriate to its importance and complexity; and
d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
33Rule 2(5) goes further in stating that the court promotes the primary objective of the FLR though active case management, which includes:
i. at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;
ii. encouraging and facilitating use of alternatives to the court process;
iii. helping the parties to settle all or part of the case;
iv. setting timetables or otherwise controlling the progress of the case;
v. considering whether the likely benefits of taking a step justify the cost;
vi. dealing with as many aspects of the case as possible on the same occasion; and
vii. if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.
34Clearly the FLR contemplate that dealing with family law cases justly is not a passive affair where the court simply reacts to motions brought by the parties. From the beginning of a case until its conclusion, the court must play a dynamic and independent role in managing cases to resolution. It must do so in order to ensure that it does justice to the parties and their children. One key venue in which the court does so is in conferences.
35The court is required to assume this active case management role for a variety of reasons. It attempts to protect the parties from the costs and ravages of unnecessary and disproportionate litigation. It endeavors to protect the parties’ children, as much as possible, from the effects of their parents’ conflict. Further the court must protect its own precious resources from being wasted on bootless litigation. As the Ontario Court of Appeal recently stated in Beaver v. Hill, 2018 ONCA 840 (O.C.A.), in the context of a family law case, proportionality is a core principle that governs the conduct of proceedings generally.
When can an Urgent Motion be Brought Before a Case Conference?
36In Bellerive v. Hammond, 2000 CanLII 28452 (ON CJ), [2000] O.J. 5816 (O.C.J.), Kukurin J. of the Ontario Court of Justice colourfully explained the purpose of the limitation on motions before conferences. He stated at para. 7 that:
Motions have deliberately been discouraged at the early stages of proceedings in favour of routing matters into various conferences that were designed in part, at least, to take an adversarial wind out of the sails of litigants.
37For that reason, Kukurin J. found that exceptions to the rule requiring a case conference before a motion must have “…some serious and significant foundations ... based on some solid evidence of some type.”
38In Rosen v. Rosen, 2005 CanLII 480 (ON SC), [2005] O.J. No. 62 (S.C.J.F.C.), Wildman J. of this court’s Family Court considered the level of urgency required to allow a motion before a case conference. In doing so, she adopted the following comment of Belch J. in Hood v. Hood, 2001 CanLII 28129 (ON SC), [2001] O.J. No. 2918 (S.C.J.F.C.) that:
… an urgent motion within a court proceeding contemplates issues such as abduction, threats of harm, dire financial circumstances and these can be addressed prior to a case conference."
39Wildman J. sets out the steps to be followed by counsel in situations of alleged urgency. They include attempts to resolve matters before a conference and ascertaining whether expeditious court dates are available for a case conference before a motion. Absent these steps, Wildman J. found it difficult to understand how urgency could be established. However she did consider the possibility “…that the situation could still be so extreme that the court must intervene immediately.” In doing so, she set the bar for urgency very high.
40In Hyde v. Szabo, [2007] O.J. No. 4227 (S.C.J.), Quigley J. of this court considered both Rosen and Hood. He commented that both cases “… make clear that it is not on a mere trifle that a motion should be permitted to be brought before a case conference, but rather only in the face of circumstances that show that a real standard of urgency can be met.” Quigley J. then went on to expand upon the types of cases that would meet the test of urgency under R. 14(4.1), stating:
Such circumstances might include, for example, real risk of material depletion or alienation of assets, real risk of harm to children if matters of custody are not resolved on an urgent basis or if a matrimonial home is not awarded exclusively to one spouse and the children, or real risk of material hardship being experienced by a custodial parent and children in the face of a non-custodial parents failure to provide support.
When Should Restraining Orders be Granted?
41Here the strongest argument for urgency is in regard to the wife’s request for a restraining order. The authority to grant a restraining order is found in s. 46(1)-(3) of the Family Law Act, which reads:
46 (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody
(2) A restraining order under subsection (1) may be made against,
(a) a spouse or former spouse of the applicant; or
(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.
(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:
Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.
Restraining the respondent from coming within a specified distance of one or more locations.
Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.
Any other provision that the court considers appropriate.
42The test for the granting of a restraining order is whether the moving party has reasonable grounds to fear for their safety or that of a child in their custody. The term “reasonable grounds” makes clear that there must be some objective reason for the fear. But as Dunn J. of the Ontario Court of Justice stated in Khara v. McManus, 2007 ONCJ 223, [2007] O.J. No. 1968 (O.C.J.), at para. 38, the test has a subjective element as well:
It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. However, an applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears.
43Further, as Dunn J. pointed out, a restraining order is not simply a response to historical concerns. Any past harassing behavior must have a connection to present acts. As he wrote at para. 34:
If a respondent has committed past acts or words of harassment, they must have some current relationship with an applicant's present fears. It may not be enough if a respondent was violent to an applicant in the past and the applicant and respondent then had an ongoing subsequent relationship that was, if not harmonious, at least not conflicted. If such an applicant then links the past aggression with possible future aggression, a court will look closely at the intervening period between a respondent's past harassment, and what an applicant perceives to be his or her present concern.
44Restraining orders are not to be made on a pro forma basis. There must be evidence of the need for such an order (Palinka v. Palinka, 2003 CarswellOnt 2944 (S.C.J.)). It is not sufficient to say that no harm will arise if a restraining order is granted (Edwards v. Tronick-Wehring, 2004 ONCJ 309 (O.C.J.)). As Rogerson J. pointed out at para. 36 of Edwards, one reason that a court should be careful about ensuring that restraining orders are granted on appropriate evidence is the potential penalty for a breach. Sub-section 46(2) of the Family Law Act imposes sanctions such as a fine or even imprisonment for a breach of such a restraining order.
Should the Wife’s Motion for be Heard on the Basis of Urgency?
45In the weeks immediately following the wife’s telephone declaration of her intent to separate, the husband frequently called the wife’s parents and then, when she returned to Ontario, the wife herself. On May 24, 2018 he sent an email with what he described as his last communication to the wife’s parents. He stated of the parties’ separation and impending dispute, “[s]o this will get really scary and nasty.” He added that “… this will get very very nasty and expensive”.
46That same day he wrote to the wife’s sister to say that “I think Sheri has gone bonkers”. The following day he wrote again to the wife’s sister, stating “Hi Susan. Sheri is pursuing a divorce with me. We will liquidate everything. This isn’t fair and will be very nasty.”
47One day in July, 2018 (the materials before me do not set out the date), the parties exchanged a series of texts. The husband sent out a vituperative series of complaints about housekeeping issues in the Home that he had yet to vacate. He twice referred to the wife as a “bitch”, including a reference to her “… cracking up or a drunk hm [sic] Harvard bitch.” When she responded in an attempt to mollify him, he responded with “F you”. He then ended the exchange with a threat of self-harm. Referring to two of the wife’s expensive pieces of furniture, he said: “[y]ou hurt me huge. Sometimes I wonder about blowing my brains out all over your 20k chairs.”
48The wife does not just rely on those texts, sent a number of months ago. She writes of her fear of him. She complains that the husband drinks to excess and is easily angered. She alleges that he surreptitiously attended at the Home after he vacated it. She claims that he left a semen stain on her bed in or about September, 2018, after he had already vacated the Home.
49The wife also believes that the husband tampered with the Home’s security system. In her telling, he then used it to spy on her. She believes that he photographed her at home and then commented about the Home’s contents to her. She also feels that he sabotaged the water in the house’s hot tub and well water system when he accessed the Home, contrary to her wishes. She went to drinking bottled water in the Home.
50The wife points out that her history of abuse in another relationship makes her particularly vulnerable to the husband’s alleged behavior in regard to the Home. All of it added together make her feel unsafe in the Home. It is one reason she wishes to sell it as soon as possible.
51The husband responded to the wife’s allegations by asserting that it is the wife who is abusive and drinks to excess. His affidavit sets out a series of incidents that span the parties’ time together, in which she was very intoxicated and/or acted irrationally and even dangerously. The husband also claims that early in their relationship, the wife once closed a garage door on him and a few months later, punched him in the face, causing him to chip a tooth and cut his lip.
52The husband’s counsel argued that the context of his statements immediately following the parties’ separation, was not a threat. Rather, he was expressing his concern with the wife’s state of mind. He was concerned about what he perceived to be her erratic behavior in separating from him. The comment that “this will get really scary and nasty” is followed by the statement that:
I think and so does our family doctor that there is an issue with Sheri and hopefully isn’t a manic state that is quiet and crashes. He is very concerned.
53The husband states that after he sent out the text in July, 2018, in which he contemplates “…blowing [his] brains out…” on the wife’s expensive chairs, he went into counselling for his anxiety and depression. He has granted her request that he not communicate with her and has not done so in about the two months prior to the motion. He adds that her purported fears of him are belied by the fact that she texted him so often in September, 2018 that his lawyer had to write to her lawyer to demand that she desist from writing to him.
54The husband flatly denies the wife’s allegations that he tampered with the Home’s water and security systems. He argues that she is conflating innocent acts with much more sinister ones. For example the security system had numerous glitches that were unrelated to him and that had to be repaired. Further on September 22, 2018 the wife changed the security codes on the matrimonial home, yet she communicated the new codes to him. To him, the notion that he would sabotage the water system in the Home is both unverified and absurd.
55Finally, the husband points out that he readily assents to the wife’s request for exclusive possession of the Home, even though he argues that there is no urgency in her request. If he had any interest in attending at the Home, he would never agree to that term.
56Considering all of the facts set out above, including the parties’ pleadings, I am not convinced that the wife presents a situation of urgency that requires the hearing of this motion. With regard to the request for a restraining order, I rely on the following eleven factors:
The wife’s application does not request a restraining order, even though it was issued on August 1, 2018, close to the time of the husband’s most concerning emails.
In fact, that application refers to substantially the same grounds that the wife now relies on in support of her claims to urgency and a restraining order. Her pleadings refer to the husband’s alleged aggressiveness, unreasonableness, intimidation, emotional bullying, instability, suicide threats, excessive drinking, and his communications to her regarding his slight control of his anger management. Yet the only remedy she sought was exclusive possession of the Home.
Even so, on August 29, 2018, the wife’s lawyer wrote to the husband’s lawyer to state that she was no longer even seeking the remedy of exclusive possession of the Home. From the evidence that I have reviewed, she did not revive her request for exclusive possession or seek a restraining order until she brought this motion on October 16, 2018.
Despite her pleaded concerns, the wife did not bring her allegedly urgent motion for almost three months after commencing this proceeding.
The husband is nonetheless willing to accede to her request for exclusive possession of that home. That remedy gives legal teeth to his assurance that he will not re-attend at the Home.
When the wife changed the security codes on the matrimonial home on September 22, 2018, she communicated them to the husband. The provision of those security codes was confirmed in a letter from Mr. Joseph of October 1, 2018, just over two weeks before the wife brought this motion.
The wife did not feel constrained enough by her alleged fear of the husband that she refrained from communicating frequently with the husband about matrimonial issues. On September 23, 2018 Ms. MacLeod complained to Mr. Joseph about the wife’s allegedly incessant, aggressive and harassing emails. She stated that there is no reason for the parties to communicate with each other without their lawyers. She threatened to call the police on the wife. This, of course is not evidence of anything but the husband’s lack of desire at the time to communicate with the wife.
The wife offers no evidence of the husband communicating with her since Ms. MacLeod’s September 23, 2018 letter. She does not dispute that the husband had not communicated with her for about two months before this motion was heard. But it belies her claims of harassment.
The evidence before me shows that the most troubling behavior of the husband occurred in the weeks immediately following his involuntary separation form the wife. But at the time the wife was not concerned enough about that behavior to request a restraining order.
The evidence that the wife offers of the husband tampering with either that water or home security system is very ambiguous at best. It is far from persuasive, particularly in the face of opposing affidavits.
Finally, and to put it bluntly, despite claiming to fear the husband, the focus of the wife’s materials and her argument of this motion was the sale of the Home rather than the restraining order.
57With regard to any alleged urgency in regard to the sale of the Home, the wife’s counsel effectively conceded that there is no urgency that could not await the case conference on January 21, 2019. Instead, counsel focused his argument on a ground not set out in his client’s materials, whether the immediate sale of the Home is in the interests of justice.
When is it in the Interests of Justice for a Non-Urgent Motion to be Heard Before a Case Conference?
58No cases that I am aware of have focused on the principles for the determination of just when a non-urgent motion before a case conference may be in the interests of justice. The logical starting point for such a consideration would be sub-rules 2(3) - 2(6), which deal with the FLR’s primary objective of dealing with cases justly. As set out above and in R. 2(3), that process involves:
a) ensuring that the procedure is fair to all parties;
b) saving expense and time;
c) dealing with the case in ways that are appropriate to its importance and complexity; and
d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
59From this it can be taken that dealing with cases justly under the FLR centres on three factors: fair process, proportionality, and the proper allocation of limited judicial resources. This focus continues in R. 2(6). That sub-rule sets out how the court promotes the primary objective through active case management and the promotion of both settlement and non-litigious processes.
60Another consideration is found under R. 14(6), which exempts certain types of motions from the application of R. 14(4)’s restriction. The motions exempted by this subrule are those:
(a) to change a temporary order under subrule 25 (19) (fraud, mistake, lack of notice);
(b) for a contempt order under rule 31 or an order striking out a document under subrule (22);
(c) for summary judgment under rule 16;
(d) to require the Director of the Family Responsibility Office to refrain from suspending a licence;
(e) to limit or stay a support order, the enforcement of arrears under a support order, or an alternative payment order under the Family Responsibility and Support Arrears Enforcement Act, 1996;
(e.1) in a child protection case;
(e.2) made without notice, made on consent, that is unopposed or that is limited to procedural, uncomplicated or unopposed matters (Form 14B);
(e.3) made in an appeal;
(f) for an oral hearing under subrule 32.1 (10),2 37 (8) 3or 37.1 (8);4 or
(g) to set aside the registration of an interjurisdictional support order made outside Canada.
61There is no singular principle that appears to animate R. 14(16). Rather it sets out certain classes of proceedings where case conferences before motions, by their nature, are unnecessary. One class is motions where there was already a hearing (e.g. motions to change a previous order, a contempt motion, a motion to limit or stay a prior support order, a motion in an appeal, or proceedings to enforce an arbitration award). Another is where the timing of the proceeding does not allow for the delay engendered by a conference (e.g. child protections matters in which children who are apprehended by a child protection agency must be expeditiously brought before the court, or even refraining motions, which must be brought between the time of notice of an impending licence suspension and the actual suspension). Further there may be proceedings that are bifurcated by jurisdiction (e.g. inter-jurisdictional cases).
62The one type of proceeding that does not fit any of the rubrics described above is a summary judgment motion (R. 14(6)(c)). Presumably such motions were exempted from the R. 14(4) requirement because the process allows for a proportionate procedural shortcut to determine whether there is a genuine issue for trial. If the result of a case is so obvious that summary judgment would be the most proportionate and just method of determining the issue, a conference is unnecessary.
63That being said, I must note that R. 14(6)(c) contradicts R. 17(1). That subrule requires at least one judge-conducted conference in each case in which an answer is filed. The only exceptions to that rule are child protection cases, where case conferences are optional. It is hard to see how the two subrules can be squared unless it is possible to bring a motion for partial summary judgment before a conference but not one to end an entire case. In addition, the court always retains the jurisdiction, in carrying out its obligation to actively manage cases, to require a conference in advance of any proceeding, including a summary judgment motion.
64In any event, and even if the request is for partial summary judgment, the exception in 14(6)(c) for summary judgment motions should be exercised exceedingly rarely.
65Considering the exceptions to R. 14(4) set out in R. 14(6), the court can attempt to analogize to determine which types of motions do not require the prerequisite of a case conference in order to meet the interests of justice. That is essentially what Pierce J. of this court did in Anderson v. Sitch, [2004] O.J. No. 4582 (S.C.J.). There she granted an injunction on a motion before a conference. That injunction restrained the Director of the Family Responsibility Office from reporting the support payor’s alleged support default to a credit agency. There was a question about whether the arrears would be reduced or eliminated in an outstanding motion to change.
66In determining that a conference was not necessary before the motion, Pierce J. also found that the relief sought was analogous to a refraining order. Under the former R. 14(5) (now R. 14(6)(d)), a party seeking a refraining order did not first have to attend a case conference.
67Looking to an analogy to summary judgment, a few cases have considered whether it would be in the interests of justice to hear a motion whose ultimate result is clear before the completion of a case conference. In Lindsay v. Lindsay, [2010] O.J. No. 204 (S.C.J.), Czutrin J of this court refused to allow a spouse to move for a severance of a divorce from the corollary relief claim when the case conference had commenced but had been adjourned to another date for completion. Czutrin J. pointed out that the spouse would be entitled to a divorce at some time. The issue before him was a procedural and temporal one; whether the divorce should be granted at that early date. He found that the answer was no, because allowing the severance then would violate the FLR’s primary objective, particularly its emphasis on resolution. In other words, granting the relief before the case conference judge could complete her work would not meet the primary objectives of the FLR. Thus it would not be in the interests of justice, even though the ultimate result was clear.
68In Rooney v. Rooney, [2004] O.J. No. 1737 (O.C.J.), Kukurin J. refused to allow a motion for child support prior to a case conference. On the facts of the case he found no urgency or hardship. The wife argued in the alternative that the result of her support motion was a foregone conclusion, so that the request should not await the completion of a case conference. Kukurin J. was not convinced by that argument, especially in light of the husband’s arguments as to entitlement and quantum. In finding that a motion before a conference in that case was not in the interests of justice, Kukurin J. looked to the high bar for such motions created by the rule. He stated that “[j]udicial determinations under subrule 14(4.2) should be infrequent and should be based on compelling evidence. Subrule 14(4.2) is essentially an exception to the general procedural rule.”
Is it in the Interests of Justice to Hear the Partition and Sale Motion Before a case Conference?
69Before considering the question of whether the motion for partition and sale of the Home should be heard before a conference, I will consider the law regarding such relief.
70The jurisdiction to award partition and sale of a jointly owned property is found in s. 2 and 3 of the Partition Act, which reads as follows:
Who may be compelled to make partition or sale
2 All joint tenants, tenants in common, and coparceners, all doweresses, and parties entitled to dower, tenants by the curtesy, mortgagees or other creditors having liens on, and all parties interested in, to or out of, any land in Ontario, may be compelled to make or suffer partition or sale of the land, or any part thereof, whether the estate is legal and equitable or equitable only.
Who may bring action or make application for partition
3 (1) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
71In Davis v. Davis, 1953 CanLII 148 (ON CA), [1953] O.J. No.733, the Ontario Court of Appeal set out the principles that still apply to partition and sale of jointly owned properties. Commenting on 1913 legislative changes (that continue in place today in the Partition Act), Laidlaw J.A. wrote for the court at para. 9:
There continues to be a prima facie right of a joint tenant to partition or sale of lands. There is a corresponding obligation on a joint tenant to permit partition or sale, and finally the Court should compel such partition or sale if no sufficient reason appears why such an order should not be made. I do not attempt to enumerate or describe what reasons would be sufficient to justify refusal of an order for partition or sale. I am content to say that each case must be considered in the light of the particular facts and circumstances and the Court must then exercise the discretion vested in it in a judicial manner having due regard to those particular facts and circumstances as well as to the matters which I have said are, in my opinion, fundamental.
72As the Ontario Court of Appeal reaffirmed in Latcham v. Latcham, 2002 CanLII 44960 (ON CA), [2002] O.J. No. 2126 (O.C.A.) the standard for the exercise of the court’s discretion under s. 2 of the Partition Act to refuse partition and sale is a narrow one. The partition application should only be denied if it is the result of malicious, vexatious or oppressive conduct. That court added that “[t]his narrow standard for the exercise of discretion flows from a joint owner’s prima facae right to partition.”
73In Thompson v. Fitzjames, [2004] O.J. No. 5218 (S.C.J.) Tulloch J., as he then was, adopted at para. 11 this definition of the term “vexatious”, which shows the narrowness of the exception:
It means the bringing of an action:
i. To determine an issue that has already been determined;
ii. Where it is obvious that the action cannot succeed; or
iii. Brought for an improper purpose, including the harassment of the respondent.
74In order to avoid partition and sale, the responding party must show that they would be prejudiced by the order, either because they have an order for (or entitled to) exclusive possession, or because their claims at trial will be prejudiced by an immediate sale (see: Copeland v. Copeland, 2017 ONSC 4475 at paras. 12 and 13, citing Batler v. Batler (1988), 1988 CanLII 4726 (Ont. H.C.)).
75Partition and sale will not be refused when it is opposed on the basis of:
Mean-spiritedness (Shemish v Bernarzi, 2006 CarswellOnt 5450 (S.C.J.) at para. 11-13);
Behaviour unrelated to the partition and sale itself (Akman v. Burshtein, [2009] O.J. No. 1499 (S.C.J.) at para. 38);
The fact that the sale could cause anxiety and even depression in the spouse opposing partition and sale (Gainer v. Gainer, 2006 CanLII 12969 (ON SC), [2006] O.J. No. 1631 (S.C.J.) at para. 17-19);
The issue of whether one party may be in a position, after equalization, to buy out the interest of the other (Allard v. Sylvain-Allard, 2015 ONSC 2052 (S.C.J.) at para. 13);
Personal attachment to the property, as there is always hardship when a party is compelled to sell against their will (Allard v. Sylvain-Allard, above);
Matrimonial proceedings, unless prejudice to the rights of a party under the Family Law Act can be established (Silva v. Silva, 1990 CanLII 6718 (ON CA), [1990] O.J. No. 2183 (O.C.A.) at para. 23);
The possibility that success in the matrimonial litigation would enable a spouse to buy out the interest of the other. That is not a form of prejudice that will prevent partition and sale (Paganelli v. Paganelli, [2002] O.J. No. 2705 (S.C.J.) at para. 6 and 14);
One party’s wish to buy out the other’s interest in the matrimonial home (Manteaw v. Nyarko, 2011 ONSC 5401 at para. 13);
A joint owner’s request for a right of first refusal or an order requiring the other joint owner to sell their interest in the property to him or her (Martin v. Martin, 1992 CanLII 7402 (ON CA), [1992] O.J. No. 656 (O.C.A.)). Such orders distort the competitive market for a matrimonial home. They discourage other interested buyers. They eliminate the need for the party seeking to exercise the right to compete with the best price for the property. The Ontario Court of Appeal concisely explained the rationale for this rule in Buttar v. Buttar, [2013] O.J. No. 372 (O.C.A.), stating at para. 64: “[t]his court has jealously guarded the rights of joint owners to the best price for jointly-owned property.”
76An order for partition and sale of a matrimonial home may take place before trial in a matrimonial proceeding, but such orders should not be a matter of course (Martin v. Martin, at para. 26).
Is an Order for the Immediate Partition and sale of the Home in the Interests of Justice?
77While the law points to the wife’s prima facie right to partition and sale, the husband has advanced a number of reasons to deny it at this time. Boiled down to their essence, they centre on disadvantage and process. He argues that an immediate order of partition and sale should not be made for the following reasons:
- He would be disadvantaged by such an order, in the following ways:
a. The wife’s late disclosure will put him at a disadvantage should he wish to buy her interest in the Home or bid on the Home on the open market.
b. If the Home is listed for sale, the wife may try to buy it herself at a discounted price.
c. The listing of the Home at this time would not fetch the best price at this time.
- The process set out in R. 14(4) should be respected because:
a. His concerns should be considered at a case conference before taking any further steps.
b. Generally, it is not in the interests of justice to carve out many exceptions to the rule that requires a case conference before a motion. That would just encourage more motions before case conferences, which would generally not be in the interests of justice.
78Despite the concerns expressed above, I find, in the unusual circumstances of this case, that an order for partition and sale of the Home before a conference would be in the interests of justice. I say this for the eight following reasons, which are fleshed out below:
The wife has a prima facie right to partition and sale of the Home.
The husband’s answer contains an admission of his motivations regarding partition and sale of the Home.
The husband has been unable to prove that he will suffer a legally viable form of prejudice should partition and sale be Ordered.
The wife would be prejudiced by a delay in the sale of the Home.
R. 14(16)(c) exempts summary judgment motions from the operation of R. 14(4).
There is no point in arguing this motion again.
1. The wife’s prima facie right to partition and sale of the Home
79As set out above, the law is clear: the wife, as a joint owner, has a prima facie right to partition and sale of the Home. The party seeking to sell the Home is the party who has had de facto and now will obtain legal exclusive possession of the Home. The wife’s right is not limited by any corresponding right of the husband to a right of first refusal or to have the court require her to sell her interest in the Home to him. As set out below, he has not asserted any viable defence to such a motion.
2. The husband’s answer contains an admission of his motivations regarding partition and sale of the Home
80In his answer, dated August 29, 2018, the husband pleads that he agrees to the wife’s request for “sale of family property”. In turn, he requests his own order for the partition and sale of the Home and even for occupation rent from the wife.
81In setting out the important facts supporting his claim, the husband states that he is seeking “immediate sale of the matrimonial home” [emphasis added]. He explains that he seeks this relief because he “… requires access to the equity in the jointly owned home.” He further pleads that it is the wife who refuses to list the Home for sale and remains living there. Yet as set out below, the husband has refused numerous subsequent requests by the wife to consent to the very relief that he pleads that he requires. He has offered various and at times inconsistent reasons for changing his position.
82The wife argues that his answer contains an admission regarding his desire to sell the Home and seeks to hold him to that admission. Under R. 22(5), an admission of fact (or that a document is genuine) may only be withdrawn on consent or with leave of the court.
83In response, the husband denies that he has made any admission but nonetheless seeks leave to amend his answer. Under R 11(3) each party has a presumptive right to amend an application or answer “… unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.” However the husband fails to say in his materials how he wishes to amend that pleading or why the amendment is necessary. In her oral argument, Ms. MacLeod alluded to the fact that the husband he wants to withdraw any claim to partition and sale.
84Here, the husband’s request for relief in his answer is not an admission of fact. But the husband did state, under “important facts supporting my claim” that he was seeking the immediate sale of the Home in order to access his equity in the Home. That is a statement of fact setting out his motivations with regard to the Home. He wants his share of the equity, not the Home. In fact, as set out below, he repeats that this is his motivation in his second affidavit in this motion, albeit in the context of prejudice.
85The husband’s motivation is relevant to this motion, where there is a real question about whether his arguments against the immediate partition and sale of the Home are made in good faith. It would disadvantage the wife to have to make her arguments in favour of the sale without being able to hold the husband to the rationale that he offered in support of the same relief in his answer.
86Thus, the husband may not withdraw his statement of fact, which in this context is an admission of his motivations in regard to the Home, without leave. He has not sought such leave.
87Further, while the husband has moved to amend his pleadings, he fails to offer an alternate pleading or a rationale for that relief. For those reasons I cannot consider his bald request to generally amend his answer. In this motion, I can rely on the statement in his answer as an admission of his motivations with regard to the Home.
3. The husband has been unable to prove that he will suffer a legally viable form of prejudice should partition and sale be ordered
88The husband has offered a shifting variety of justifications and rationalizations for refusing to agree to partition and sale of the Home at this time. Since he started this proceeding by requesting that very relief and stating that he required his equity in the Home, there are valid reasons to question the good faith of his opposition. For the reasons set out below, including my findings about his motivations in opposing this motion, I reject his claims of prejudice should I immediately order partition and sale of the Home.
Correspondence Between Counsel Demonstrates Husband’s Shifting Rationalizations for Refusing to Agree to Sale of the Home
89The starting point of my consideration of the husband’s claim to prejudice is the correspondence between counsel following service of the answer. Shortly after receipt of that pleading, Mr. Joseph wrote to Ms. MacLeod, seeking the husband’s formal consent to the Home’s immediate listing. He had every reason to expect an affirmative response.
90Ms. MacLeod responded that the husband would not consent to listing the Home until he received the wife’s offer to purchase the cottage and her full financial disclosure. Ms. MacLeod explained that her client “… may [emphasis added] wish to purchase your client’s interest in the [Home].” Ms. MacLeod did not spell out the reason for this somewhat sudden change of position, coming about three weeks after the husband signed his answer.
91On October 14, 2018, Ms. MacLeod responded to a second request by Mr. Joseph for the husband’s consent to the listing of the Home. She stated that the husband would not agree to any sale without full financial disclosure. She made no reference to his potential purchase of the Home.
The Husband’s Affidavits in this Motion Show his Changing Justifications for Resisting this Motion
92The husband’s two subsequent affidavits in this motion are instructive. In his November 8, 2018 affidavit, he explained that he insisted on receiving the wife’s disclosure and cottage offer before agreeing to list the Home because he wanted to determine whether he wishes to buy the Home. He added that he had no ability to determine whether he would be able to buy out the wife’s interest in the Home without that disclosure. Of course, as set out above, he has no right of first refusal on the sale of the Home or to force the wife to sell her interest to him, unless on the open market. Since he is represented by capable counsel, he must have known that when he swore his affidavit.
93The husband then referred to an informal understanding that the wife would purchase his interest in the Home and that he would purchase her interest in the cottage. He added that he obtained his own appraisal of the value of the Home for that purpose. Of course, that statement shows that he was not interested in buying the Home, but in selling his interest to the wife.
94The husband went on to state that he changed his mind about the sale after the wife proposed to list the Home and buy the cottage from him. She then “aggressively” emailed and texted him. At that point, he decided that if the wife was going to take that position, he would not agree to sell Home until he received her offer to buy the cottage and her disclosure. He needed the disclosure to determine whether he wanted to buy the Home. But she, in turn, refused to make an offer on the cottage or to give him his requested disclosure.
95In his second affidavit, dated November 23, 2018, the husband added a new pre-condition to his consent to the sale of the Home and took a new position regarding his intention to buy it.
96In addition to demanding disclosure, the husband insisted that both the equalization and the support issues must be determined before he will consent to the sale. In that way, he would be able to make his own formal offer to buy the house on the open market. Implicit in this new demand is the understanding that short of settlement, those property and support determinations would require a trial, many months or more from now.
97The husband went on to claim that the wife misunderstands his motivation for refusing to agree to list the Home for sale. He explained that if it were sold on the open market, the wife would buy the house from under him at a discounted price. He deposed that:
The reason for this [position] is because there is clear evidence that the Applicant wishes to purchase my interest in the matrimonial home and she has the resources to do this without having the financial issues determined.
98Having alleged the existence of “clear evidence” of the wife’s secret intention, the husband failed to offer any such evidence. The husband failed to explain why, if the wife were seeking to buy him out of the Home, she would not first try to do so without paying real estate commission or the cost of this motion. By the time he swore his second affidavit, Mr. Joseph had written to Ms. MacLeod several times, trying to arrange to list the Home for sale.
99Equally important, in his second affidavit, the husband offered a different motivation for resisting the sale of the Home. He said that he wants to delay the sale until a final resolution in order to be able to obtain financing to counter the wife’s anticipated low bid for the Home. He would be able to provide a counter-offer, “…thereby ensuring that I received what I believe to be the market value for my interest.”
100In other words, he implicitly admits, again, that his concern is not to buy the Home. Rather, he wants to ensure that the wife does not get a bargain at his expense. Assuming that she wants to buy the Home, he simply wants to arbitrarily drive up her purchase price by bidding against her without hoping to win. That is far from seeking fair market value for the Home. Rather it is an attempt to distort the competitive market for the Home by making an insincere offer to buy it, only in the hope that the wife will be forced to top it.
The Wife has no Interest in Buying the Home
101I add one salient point that the husband is unwilling to accept: the wife has no interest in buying the Home. During argument of this motion, Mr. Joseph, offered a reasonable rationale for the wife’s position. After all she’d been through in in the Home (from her point of view), she simply wants to sell and leave it. Further, she is paying virtually all of its expenses.
102As a result, Mr. Joseph was willing to undertake on behalf of his client, that she would not make an offer to buy the Home once it is listed. Ms. MacLeod’s skeptical response was that the wife could just buy it through a third party or in some other indirect way.
103In reply to this argument and my question, Mr. Joseph stated that he and his client would agree to an order that she not make any offer, whether directly or indirectly, to purchase the Home. Any such offer would be null and void. That concession did not mollify the husband. Ms. MacLeod’s response was that I lack the jurisdiction to make such an order.
104With respect, I disagree. In ordering partition and sale of the Home, I have the jurisdiction under s. 3(1) of the Partition Act to provide “directions” for the sale of the Home. I may do so in order to ensure that “… such sale is … more advantageous to the parties interested.” Here I could find that such an order meets that criterion. I would not make an order forbidding the wife to bid on the Home if it were not on consent, but it is. An order based on that concession meets the husband’s concern about prejudice in his pursuit of the best price for the Home.
105During the argument of this motion, the husband’s counsel relied on another ground of alleged prejudice should partition and sale of the Home be ordered now. She rhetorically referred to the notion that the market for the sale of the Home will be weaker this winter and should await a better time for the sale. Yet the husband would not commit to an agreement to sell the Home during the spring of 2019 or at any time before trial. Thus the argument about the current market is really a red herring. Nonetheless I will consider whether it raises any prejudice that should delay the sale of the Home. As set out below, the evidence belies the husband’s arguments.
Husband‘s Market Evidence does not Demonstrate need to Delay sale
106It is common knowledge that the winter is not the best time to list or sell a home. But that understanding assumes a stable market. I have been presented with two letters of opinion regarding the value of the Home, one proffered by each party. Neither letter can be said to be an expert report under R. 20.1. If anything, each is more akin to that of a “participation expert”, as defined by the Ontario Court of Appeal in Westerhof v Gee Estate, 2015 ONCJ 162, [2015] O.J. No. 1471 (O.C.A.). Neither party objected to the admissibility of either report, although the husband argues that the wife’s “expert” has a personal interest of obtaining the listing of the Home.
107Eve Claxon, the real estate agent retained by the wife, provided a letter of opinion, apparently prepared in October, 2018. It stated that the fall was an optimal time to list and sell the Home. She warned that there were reasons to believe that market factors and a potential increase in interest rates mean that the spring, 2019 market may not heat up as it has in the past. She added that there were fewer luxury homes in the one million plus dollar range on the market in the area of the Home, making it a desirable time to list the Home. There is no dispute that the Home is currently worth more than one million dollars.
108The husband relies on the report of his real estate appraiser, Katrina Baker. He particularly relies on Ms. Baker’s statement that “[m]arket values for executive homes have remained stable since April, 2018 ….” However he omits to refer to the following caveat that Ms. Baker offered at the bottom of her report, which considerably contradicts his thesis:
… it is very important to consider what the market determined the subject property was worth when it was listed for sale in October of 2017, and to take into account that the market for properties worth over one million dollars has softened since the subject [property] was last listed in October 2017.
The softening of the market for million dollar homes and decline in demand was also confirmed by two realtors that specialize in selling million dollar homes in Puslinch.
109In other words, the husband’s own appraiser felt that the market for the Home was softening. While this opinion is not determinative, it is part of the opinion tendered and relied upon by the husband. Even if I ignore the letter of the wife’s real estate agent, I can consider this report. It certainly is enough to allow me to say that there is no evidence that waiting until say, the spring of 2019, would yield a higher price than an immediate listing. Rather, there is some evidence to the contrary.
110That being said, it should be recalled that the husband is not holding out for a spring, 2019 listing for the Home. He is seeking to delay the sale to some indefinite point, well in the future.
No Prejudice from Wife’s Delayed Disclosure
111Further, because of those findings, particularly in regard to the husband’s motivations regarding the sale of the Home, I do not find that the wife’s delay in providing her disclosure is a reason to delay the sale of the Home.
112This comment should not be taken as condoning delayed disclosure. It is always troubling to hear of delayed disclosure. However the issue of the reasons for the delays in providing disclosure were not argued before me. It is likely most relevant to the issue of costs.
Conclusion: the Husband has demonstrated No Prejudice
113In considering all of the above, I do not find that the husband has made out a legally viable case that he would be prejudiced by the partition and sale of the Home at this time.
4. The wife would be prejudiced by a delay in the sale of the Home.
114The wife can claim three elements of prejudice should the order of partition and sale not be made at this time. First she sincerely wishes to leave the home. Second, she is paying its expenses. Third, she is subject to a claim for occupation rent.
115Unlike the husband, I accept that the wife has no ulterior motive in regard to the sale of the Home. She has no interest in buying the Home out from under the husband at a bargain price. She sincerely wishes to leave and sell the Home. She agrees to a term forbidding her to bid on the Home. While I do not feel that her request for a restraining order presently meets the legal tests of urgency or s. 46 of the Family Law Act, that finding does not mean that her concerns about remaining in the Home are insincere.
116While the wife has been the only party residing in the Home for some months, she is also the only one paying its expenses. The carrying costs of the Home come to about $6,000 per month or $72,000 per year. While she can afford that cost, it is significant. Further, while the wife pays the full mortgage on the Home, the husband is its half owner. With each payment, she is adding to the husband’s equity in that property.
117Yet she is subject to a claim by the husband for occupation rent. The amount of his claim will only increase for so long as she remains in the Home. I recognize that the husband’s claim is not a strong one. The wife only now obtains an order of exclusive possession and it is on consent. She is the one seeking to sell the Home. Yet her continued residence in the Home exposes her to the risk of an increasing claim. Exposing her to this claim when she wants to sell the Home immediately and the husband is not interested in buying it seems prejudicial, not to mention wasteful, to her.
5. Rule 14(16)(c) exempts summary judgment motions from the operation of R. 14(4)
118As set out above, while R. 14(4) requires a conference before a motion, one of the exceptions to that requirement, found at R. 14(16) is for a summary judgment motion. Although not framed as such, this motion for partition and sale of the Home prior to trial is in essence a motion for partial summary judgment under s. 2 and 3 of the Partition Act. Thus the court has jurisdiction, notwithstanding R. 14(4) to allow this motion to proceed. That being said, such a motion should certainly be the exception rather than the rule in all but special cases.
6. There is no point in arguing this motion again
119Finally, if I dismiss this motion, the wife will just bring it again in a month or two, following the January, 21, 2019 case conference. At that time, she will make substantially the same arguments on substantially the same facts that she has in this motion. The husband will respond in kind. The only arguments missing will relate to the prerequisite of a case conference.
120At the end of the day, the court will come to the conclusion that this is an appropriate case for summary judgment as the issues do not require a trial for determination. The summary judgment process allows the court to reach a fair and just determination on the merits on a motion for summary judgment in regard to the Partition Act application because the process:
(1) provides the court with the evidence required to fairly and justly adjudicate the dispute by making the necessary findings of fact;
(2) allows the court to apply the law to those facts; and
(3) is a proportionate, more expeditious and less expensive means to achieve a just result.
(see: Hryniak v. Mauldin, 2014 SCC 7, at paras. 49 and 66).
121Further, partial summary judgment in this case does not raise the risk of inconsistent findings that was identified by Myers J. of this court in Mason v. Perras Mongenais, [2018] O.J. No. 1178 (S.C.J.) at paras. 18-21 and 33.
122This brings me to the heart of the issue about whether it would be in the interests of justice to allow this motion, whose result is inevitable, to proceed before a case conference. In doing so, I am balancing principle against practicality. The principle is clear and is set out in R. 14(4). Our family law court system relies on conferences for the reasons set out in R. 17(4). The court should be loath to encourage motions before case conferences, when the likely result would just be increased litigation. This concern is highlighted by the fact that the request for partition and sale was originally described as being part of an “urgent” motion, when no urgency has been shown. Only when the parties argued this motion did the wife’s counsel shrewdly adopt the “interests of justice” argument.
123However I cannot see how the requirement to replay this motion meets the factors for dealing with cases justly set out in R. 2(3)(b),(c), or (d). Doing so would also be contrary to the court’s duty to actively manage cases in accord with R. 2(5)(a), (e) and (f). The court would only require this motion to be argued again in order to stand on principle.
124But a replay of this motion after a case conference would only increase the costs for the parties and waste the court’s resources. It would do so for no discernable benefit to the larger issue of justice between the parties or what the FLR defines as the interests of justice.
125I also consider that R. 14(16)(c), while an exception to R. 14(4), is meant to fit within its scheme. In other words, while I have the discretion to require a case conference before a summary judgment motion, at least some summary judgment motions do not require a prior case conference.
126Accordingly, in balancing all of the factors set out above, I see no point in replaying this motion. I order that the Home be partitioned and sold. My concerns regarding the propriety of bringing this motion as an “urgent” motion can be dealt with in my determination of costs.
127Further, subject to the consent terms regarding the wife directly or indirectly making an offer for the Home, I will not set terms for the sale until the parties attend at a case conference. I say that for three reasons. First I wish to allow them the opportunity to agree to those terms rather than have them imposed on them by me. That is one of the purposes of a case conference and need not be short circuited. Second, the conference date is not far off. The parties can exchange proposals regarding agents and terms of sale between the time of release of these reasons and January 21, 2019. Third, I do not wish to encourage motions like this in the future. The result in this case arises only from its somewhat unique facts.
128Accordingly, I order as follows:
On consent, the Wife is entitled to temporary exclusive possession of the Home.
The Home shall be partitioned and sold.
The wife may not directly or indirectly (whether through an agent, trustee or a corporation in which she holds any interest) make an offer to purchase the Home. Any such offer is null and void.
I reserve the balance of this motion that deals with the terms of the sale of the Home to a date to be arranged by the parties before me if they are unable to agree on those terms. That attendance may take place in Milton, where I normally sit, or if the parties are able to arrange it, in Guelph. The date can be arranged by contacting the trial coordinator office.
The remainder of each party’s motion is dismissed, without prejudice to the husband’s right to move for further disclosure if the disclosure delivered to him on the eve of this motion was inadequate.
If the parties are unable to agree, I will deal with the costs of the parties’ motions at the conclusion of the remainder of this motion. However I note the divided results in the two motions and my findings regarding the wife’s claim of urgency.
If the parties require assistance in regard to the next step in the motion regarding partition and sale or with regard to costs, they may arrange a conference call through my judicial secretary.
Kurz J.
Date: January 4, 2019