Thomas v. Wohleber, 2020 ONSC 1965

Court File and Parties

Court File No.: 43117/20 Date: 2020-03-30 Superior Court of Justice - Ontario

Re: Barbara Elizabeth Thomas, Applicant And: Jeremy Robert Wohleber, Respondent

Before: Kurz J.

Counsel: Christopher Burrison, for the Applicant Mr. Wohleber, Self-represented

Heard: In Chambers

Endorsement

Introduction

1The Applicant (“Barbara”) moves without notice for urgent financial relief. The requested relief arises from the recent removal by the Respondent (“Jeremy”) of $775,643.48 from the parties’ Royal Bank of Canada (“RBC”) joint line of credit, bearing account number ******** - 001 (the “LOC”), thereby draining it. The LOC appears to be secured against the parties’ primary matrimonial home in Oakville (“the home”) by a third mortgage. Barbara seeks an order for the return of those funds, a subsequent freezing of the LOC account, a non-dissipation order and certain disclosure.

2The 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. At this time of pandemic, only the most urgent matters can be heard. That requirement is set out in this court’s Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings, issued to explain and direct the suspension (“the Notice”).

[3] Under that Notice, urgency in non-child protection family law matters is not defined, but it is described as including: a. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); b. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child; c. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order.

4It is clear from that Notice that only the most urgent matters will be heard by this court until the circumstances arising from the COVID-19 pandemic allow it to hear a broader range of proceedings. To do otherwise would overwhelm the presently limited administrative capabilities of this court. I will have more to say about the test for urgency under the Notice and the exigencies of this court below.

5Here, I find that Barbara’s concerns regarding Jeremy’s unilateral removal of a substantial sum of money, thereby draining the LOC, raises serious and urgent concerns that the parties’ assets are being significantly depleted. This creates a dire issue for Barbara and the parties’ children. That conduct meets the Notice’s high test of urgency with regard to the parties’ financial circumstances.

6Accordingly, and for the reasons that follow, I order, without notice, on a temporary and without prejudice basis, the immediate return to the LOC of the funds that Jeremy unilaterally removed from it as well as the account’s freezing once the funds are returned. In addition, I make a non-dissipation order. I will return this matter to be heard by teleconference on April 8, 2020 at 11:30 to allow Jeremy to respond to this motion.

Background

7The parties married on June 13, 2009. They have two children, O, age 8 and B, age 6 (collectively “the children”). I use only each child’s first initial to identify him or her in order to protect the children’s privacy. Barbara claims that she has been the children’s primary caregiver throughout their lives. Barbara is employed as a financial administrator, earning $67,600 per year. The children currently primarily reside with Barbara on a de facto basis. There are no court orders regarding custody, access or support.

8Jeremy is now self-employed. Barbara states that Jeremy had been employed until 2017 as a Director, Global Equity Linked Products, Capital Markets with the Royal Bank of Canada. She asserts that he earned approximately $700,000 to $900,000 annually in that role. She avers that he took a short-term medical leave for mental health reasons in 2017, which was extended into a long-term leave. He has never returned to that employment. It is not clear from Barbara’s materials whether Jeremy receives long-term disability insurance benefits. While Barbara says that Jeremy entered into a number of unsuccessful business ventures since he left RBC, she is unaware of his present income and assets.

9Barbara describes the parties’ marriage as a rocky one. She asserts that Jeremy was financially controlling and secretive. He was the primary income earner in the family. By her account, they lived a materially substantial life. They own two properties: the home that she estimates to be worth about $2,000,000 and a cottage, worth about $800,000 (“the cottage”). Those properties are subject to mortgages against them that total $384,356.51 plus the LOC. They own a $40,000 boat, two ski-do’s, various jewellery and household/cottage contents.

10Barbara swears in her financial statement that she is holding about $204,000 in various accounts, most of which are RRSP’s and TFSA’s. This amount has decreased by about $30,000 in the few weeks since the date of separation. She has less than $15,000 in immediately liquid chequing and savings accounts. She claims almost $215,000 in annual expenses.

11Barbara describes Jeremy as suffering from mental health concerns from before the time of his 2017 leave of absence from work, onward. She describes symptoms that include Jeremy’s alleged depression, suicidal thoughts, isolation (often at the cottage) and paranoia about her purported affairs. She portrays him as constantly angry at her and distant from the children.

Alleged Conduct Leading to this Motion

12Jeremy unilaterally drained the LOC in two different occasions in the past six weeks. On February 18 and 20, 2020, Jeremy removed two sums of money, totalling $775,000 from the LOC, which had been registered against the home. That was the entirety of the credit available to the parties on the LOC. Until that removal, the LOC’s balance was zero.

13Barbara discovered that removal when she attended at the parties’ bank on February 20, 2020. She immediately contacted Jeremy. He attended at the bank, where Barbara relates that he admitted to removing the money. He stated that he was keeping it in a “safe place”. She later learned that he had first placed the funds in his personal account. He then took out a $750,000 bank draft from that account.

14When confronted, Jeremy allegedly explained to Barbara that he took this unilateral action because he suspected that she was having an affair with a family friend. Jeremy was unable to articulate to Barbara the reason for either his suspicion of the affair or why the money was not safe within the LOC. Rather, as Barbara understood it, he implied that he had been following and/or tracking her. Barbara demanded that Jeremy immediately return the money.

15While not material to this motion, Barbara denies the affair.

16Fearing for Jeremy’s mental health, Barbara took the children and moved with them to her parents’ home in Ancaster, a half-hour drive from the home.

17During the course of discussions between the parties, Barbara continued to insist that the money be returned to the LOC. Jeremy asked her to return to the home so that they could effect an amicable separation. Barbara says that she agreed to do so only on the condition that he return the money to the LOC. He agreed and returned the money to RBC on March 3, 2020, in Barbara’s presence.

18Barbara and children returned to the home the next day, March 4, 2020. But that was not the end of it.

19Barbara complains that Jeremy followed and tracked her wherever she went in the home on the day of her return. She says that he tried to listen in on her telephone conversation with her mother. Barbara adds that at some point that day, Jeremy admitted to removing the money from the LOC to prevent her from retaining a lawyer. He claimed to have had a tracking device which enabled him to track her at all times. He allegedly asserted that he had been following all her movements in her car but wouldn’t tell her how he was doing this.

20Barbara is concerned that Jeremy has also installed spyware on her cell phone, as he seems to have access to her private conversations and emails, and appears to know that she has met with lawyers.

21On March 5, 2020, Barbara learned that Jeremy had surreptitiously removed $765,143.48 from the LOC the previous day; that is the day that she returned home. That, of course, breached the spirit of their agreement for her return to the home. Barbara chose to return to her parents’ home with the children, claiming to feel unsafe. She professes to have been facilitating access since then.

22On March 18, 2020, Barbara’s counsel wrote an aggressive letter to Jeremy, making a series of immediate demands on him, including the return of the money to the LOC. Jeremy retained counsel, who responded in kind two days later. Most telling in that response, for the purposes of this motion, were three things: Jeremy’s implicit admission that he had unilaterally removed the funds, his failure to explain his conduct and his refusal to return the money to pay off the LOC. Instead, his counsel wrote:

The funds withdrawn from the joint line of credit will be preserved in a separate bank account. Mr. Wohleber will be entirely responsible for any interest and/or fees associated with the withdrawal.

23The remainder of Jeremy’s lawyer’s letter included a demand for a shared parenting arrangement and that Barbara effectively surrender the home to him. The lawyer subsequently wrote to Barbara’s lawyer, stating that he should deal with Jeremy directly and providing an email address for him to do so. In other words, he was no longer retained to represent Jeremy.

The Court’s Jurisdiction in Cases of Urgency

24Having courts open to the public in order to resolve their disputes is a bedrock requirement of a democratic society. However, courts and government, even in ordinary times, have had to enact rules that set out when and in what manner the public may have access to the courts. They do so in order to ensure that courts and litigants are not overwhelmed by disproportionate litigation, that lawsuits proceed in a just, proportionate and efficient fashion, and that the court’s resources are open to all.

25The Family Law Rules (“FLR”) are guided by the primary objective of dealing with cases justly, both procedurally and substantively (r. 2(2)). They set out requirements for the orderly determination of family law cases. The FLR distinguish between the majority of matters that can be heard in the ordinary course from those exceptional ones that require immediate attention because of urgency and hardship.

[26] Ordinarily, a party seeking to bring a family law motion must meet a number of preconditions:

1. The motion must be preceded by a family conference on the substantive issues in the case (r. 14(4)). However under r. 14(4.1), the court can dispense with that condition if it finds that there is hardship or urgency.
2. The parties must first attend a Mandatory Information Conference in cases dealing with net family property, the matrimonial home, support and a restraining order (r. 8.1 (1), (4), and (7)). However the court can obviate that requirement if it finds “… urgency or hardship or for some other reason in the interest of justice.” (r. 8.1(8)).
3. The motion materials must be served on all other parties to the motion at least six days prior to the date that the motion is to be heard (r. 14(11)(a)). The parties to the motion must also confer or attempt to confer orally or in writing about the issues in dispute in the motion (r. 14(11)(c)). However under r. 14(12) a motion may be made without notice if: a) the nature or circumstances of the motion make notice unnecessary or not reasonably possible; d) service of a notice of motion would probably have serious consequences.
4. If an order is made on a motion heard without notice, the matter must return before the court, and if possible, the same judge, within 14 days.

[27] The Oxford Canadian Dictionary defines the term “urgent” as:

1. demanding or requiring immediate action or attention; pressing (an urgent need for help).
2. expressing a need for prompt action or attention; insistent (an urgent call for help).

28The test of urgency that allows a party to avoid a case conference before bringing a motion is set out in Rosen v. Rosen, [2005] O.J. No 62 (S.C.J.). There, Wildman J. adopted this description of urgency set out by Belch J. in Hood v. Hood, [2001] O.J. No. 2918 (S.C.J.):

… 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." [Emphasis added]

[29] In Rosen, Wildman J. sets out the two key steps that must be taken to allow an urgent motion to be heard before a case conference. They are:

• determining the availability of conference dates, and
• counsel/parties conferring in an attempt to arrive at a short term resolution before the matter comes to court.

30The Notice’s recitation of situations of urgency builds on Belch J.’s description of urgent situations but offers greater detail. Only the most serious of cases meet the Notice’s test. That test of urgency is, as set out below, a large step removed from simple importance to the parties.

31At the present time, the Notice’s test of urgency must be strictly enforced in order to ensure that the court’s limited administrative resources are available to deal with the most serious and urgent of cases. Without rigorous enforcement of the Notice, even extremely urgent cases; those that call for immediate court involvement to protect children, the safety of vulnerable spouses or extreme financial need, will have to queue up behind less urgent matters. This raises the considerable risk of harm by delay.

32At the same time, our court’s limited resources, tethered to a limited number of overworked administrators, runs the risk of being overwhelmed and becoming unable to offer necessary judicial services to those most in need.

33Rather than speculate whether the present test of urgency is even higher than the one already set out in Hood and Rosen, it is important to emphasize the scrupulousness with which the urgency standard must presently be enforced. That may even mean that some issues that may have been heard on an urgent basis because the test of urgency was not strictly applied in a non-pandemic world will not meet the high threshold set by the Notice. It may mean that some issues in a motion are urgent while others are not.

34For example, in Ribiero v. Wright, 2020 ONSC 1829 (Ont. S.C.J.), Pazaratz J. refused to allow a motion to proceed that had been brought by a primary caregiver, seeking to suspend her former spouse’s access. Pazaratz J. found that moving party’s vague concerns that the other parent would not exercise social distancing did not meet the high test of urgency. He found at para. 20 that parents “…should not presume that the existence of the COVID-19 crisis will automatically result in a suspension of in-person parenting time.” Rather the moving party claiming urgency must provide specific evidence or examples of parental behaviour that creates a level of urgency. Much the same is required of responding parties, to assure the court that the concern is unwarranted. In these difficult times, both parents or spouses must “… act responsibly and try to attempt some simple problem-solving before they initiate urgent court proceedings.” (para. 22).

35In Onuoha v. Onuoha, 2020 ONSC 1815 (S.C.J.), Madsen J. dealt with a Hague Convention case where a parent from Nigeria had unilaterally removed the parties’ children to Canada. Despite the obvious concern raised by the international kidnapping, and the potentially unfair status quo that may arise from a lengthy adjournment with the children in Canada, Madsen J. found that the case failed to meet the test of urgency. Her reasons were both practical and principled.

36Looking practically, Madsen J. noted that international travel was not possible at a time that borders are closed. Even if the father were successful, the children would not be returned to him for months. Further, sending the children home through potentially infected airports at this time is “foolhardy”, as it runs the risk of exposing them to the virus. On the other hand, the children are in the care of their mother, which presumably assured Madsen J. about their present safety.

37On a principled basis, Madsen J. distinguished between cases that are “very important to the parties” and even urgent to one or both of them, from those that are “currently ‘urgent’" in accord with the Notice. Even the prejudice to the father that may arise from the delay was not found sufficient to meet the Notice’s test of urgency.

[38] In considering the dictionary definition of the term, urgent, the circumstances of urgency set out in the Notice, the examples of urgency offered in Hood and Rosen, and the cases cited above that apply the Notice’s test of urgency, I find that the following factors are necessary in order to meet the Notice’s requirement of urgency:

1. The concern must be immediate; that is one that cannot await resolution at a later date;
2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children;
3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

39The court’s adoption of the test of urgency in this time of pandemic requires all participants in the justice system, judges, lawyers and spouses/parents, to shoulder greater responsibility than they usually are required to assume in family litigation. They must assume this mantle of responsibility in order to ensure that the most urgent cases can continue be adjudicated by the court in these days of crisis. As Pazaratz J. pointed out in Ribiero v. Wright, 2020 ONSC 1829 (Ont. S.C.J.) at para. 23:

Right now, families need more cooperation. And less litigation.

Jurisdiction to grant the Relief Sought

[40] Under s. 12 of the Family Law Act, I have the jurisdiction, in applications regarding equalization of net family property and questions of title between spouses, to make an interim or final order for the preservation of property. I may make such an order if I find it necessary to preserve a spouse’s interests in family property: (a) restraining the depletion of a spouse’s property; and (b) for the possession, delivering up, safekeeping and preservation of the property.

41Under s. 40 of the Family Law Act, I may make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim for child or spousal support.

42The relief that Barbara seeks with regard to the return of the funds to the LOC, its freezing and an order restraining the depletion of property all come within the rubric of s. 12 and 40.

Finding of Urgency

[43] I find that the parties’ financial situation with regard to the funds removed from the LOC, as articulated in Barbara’s materials, meets the high test of urgency set out in the Notice. I say this because of the following:

1. Barbara’s allegations point to Jeremy’s erratic personal and financial behaviour, particularly over the past six weeks.
2. The correspondence of Jeremy’s counsel contains his implicit admissions that he had unilaterally removed the funds from the LOC, that he is holding them in a manner accessible only to him, that he accepts that they must be preserved, and that he refuses to return them.
3. Jeremy has refused or failed to justify his unilateral conduct. From the only evidence available to the court, he appears to be motivated by anger, jealousy or a desire to financially control Barbara.
4. The amount of the debt on the LOC is equivalent to more than eleven times Barbara’s annual income. It represents a significant percentage of the parties’ assets before the present pandemic. In these times of great uncertainty, it is at least possible that the value of the parties’ two most significant assets, the home and the cottage, will see a significant reduction in value.
5. Unlike the parties’ principle assets, which are real estate, the funds taken from the line of credit are liquid and available to be used as the holder of the funds sees fit. Barbara has few other liquid assets at her disposal. In other words, Jeremy’s depletion of the LOC deprives Barbara of potential resources that she may require in the future in order to support herself and the children during these difficult times.
6. Barbara is jointly and severally responsible for repaying all of the funds that Jeremy removed. She would be unable to pay off the LOC if RBC were to call the loan.
7. The LOC bank records produced with this motion confirm Barbara’s allegations regarding the timing of Jeremy’s utilization of the LOC over the past six weeks.
8. There is a significant risk that Jeremy would dissipate the funds that he improperly removed from the LOC after originally agreeing to return them;
9. All of this raises concerns of dire circumstances for Barbara and the parties’ children if the funds are not repaid on the LOC and a non-dissipation order is not made.

44All of that being said, I do not find, upon the materials that have been filed to date, that it is urgent that Jeremy provide the immediate financial disclosure demanded by Barbara. That is something that can take place in the ordinary course of this litigation.

Order

[45] For the reasons set out above, I dispense with the requirements of notice of this motion, a mandatory information session and a case conference set out in para. 24 above. I order that:

1. Jeremy shall, within 24 hours of service of a copy of the order arising from this endorsement, repay to the LOC (being the parties’ RBC line of credit bearing account ******** - 001) the sum of $775,643.48, plus any interest that has accumulated since March 4, 2020. The effect of this term of my order is that the amount that Jeremy shall deposit towards the LOC shall return the account balance to $0.00.
2. He shall provide proof of that repayment within 24 hours of the repayment. That proof shall be provided to Barbara’s counsel, by email at (address withheld in posted version of this endorsement).
3. Upon the funds being returned to the LOC as set out above, the LOC shall be frozen. Thereafter, both parties are precluded from debiting the RBC Line of Credit pending further order of the Court or written agreement between the parties.
4. Until the return of this motion, Jeremy is restrained from transferring, assigning, pledging, disposing of, depleting, dissipating, or otherwise dealing with any assets under his control. He shall preserve such property until further Order of this Court. The sole exceptions to this term are with regard to any payments necessary to preserve and maintain the home and to retain counsel for this proceeding.
5. This motion shall return before me by teleconference on April 8, 2020 at 11:30, to allow Jeremy to respond to this motion and for the court to determine whether to continue the terms set out above.
6. Jeremy’s approval as to form and content of this Order is dispensed with.
7. The costs of this motion to date are reserved to the hearing of the return of this motion.
8. Until further order or the placement of counsel for Jeremy on the record in this proceeding, Barbara may serve Jeremy by email at (address withheld in posted version of this endorsement).
9. Barbara shall immediately serve upon Jeremy, at (address withheld in posted version of this endorsement), all of the materials that she has sent to the court for this motion as well as this endorsement and the Notice to Responding Party (which shall form part of this endorsement).
10. Barbara shall issue the draft application that she has filed with the court immediately upon it resuming its normal operations.

Postscript

46It would be in the interest of both parties’ for Jeremy to immediately retain counsel. That counsel could immediately communicate with Barbara’s counsel to resolve the issues raised in this motion as well as the larger issues that arise from the parties’ separation. I strongly recommend that he do so.

47I commend to the parties the following wise words from my colleague, Pazaratz J., in Ribiero v. Wright at para. 23 about what the court is looking for from litigants during these difficult days:

What we’re looking for is realistic solutions. We will be looking to see if parents have made good faith efforts to communicate; to show mutual respect; and to come up with creative and realistic proposals which demonstrate both parental insight and COVID-19 awareness.

Kurz J.