Court File and Parties

COURT FILE NO.: FC-16-FS-51576 DATE: 2020-04-01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Christina Lynne Theis, Applicant Mark John Theis, Respondent

BEFORE: Madam Justice L. Madsen

COUNSEL: Glenda D. McLeod, Counsel for the Applicant

HEARD: In Chambers

Endorsement – COVID-19 Protocol

[1] AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice have been suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/.

[2] The Notice of the Chief Justice provides that “urgent and emergency” matters shall continue to be heard by the Superior Court of Justice during the suspension of operations due to COVID-19, and that urgency is “as determined by the presiding justice.” The Notice specifies that such matters may include requests for urgent relief relating to the safety and wellbeing of a child, as well as “dire issues related to the parties’ financial circumstances.” This preliminary determination of urgency is an exercise of judicial discretion.

[3] Ms. Theis has brought an urgent motion seeking payment to her of $85,000 from what she states is her share of the proceeds of sale held in trust in relation to the 2016 sale of the matrimonial home.

[4] In accordance with the Regional Notice to the Profession, electronic materials were filed by the Applicant, Ms. Theis. As the Respondent’s pleadings were previously struck, the materials were not served.

[5] This matter was referred to me as Triage Judge for a determination of urgency and of how this matter should proceed.

[6] The court received the following materials at Kitchener.Superior.Court@ontario.ca, which will be duly filed in the court record when regular court operations resume: a. Notice of Motion dated March 30, 2020; and b. Affidavit of Christina Theis, sworn March 30, 2020, with exhibits.

[7] In Thomas v. Wohleber, 2020 ONSC 1965, released March 30, 2020, Kurz J. explained the high threshold with which the concept of “urgency” is applied in the current pandemic context. He stated:

[31] At 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.

[32] At 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.

[33] Rather 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.

[emphasis added]

[8] For the reasons set out below, and applying the law on urgency under the Notice to the Profession as set out by Kurz J., I find on the materials currently before the court that this matter is not urgent at this time.

[9] In summary, Ms. Theis states as follows in her affidavit: a. The parties separated on June 1, 2015 after a twelve-year marriage. Their children spend equal time with each parent. b. After having been found in contempt on June 4, 2018, Mr. Theis’ pleadings were struck on August 16, 2018. c. Ms. Theis has had difficulty obtaining disclosure from Mr. Theis. d. On July 17, 2019, Mr. Theis was again found in contempt. On March 11, 2020, he was ordered to pay $25,000 within 60 days as a penalty for contempt. e. The parties sold their home in August 2016. At that time proceeds of sale of $168,914.21 were deposited into an interest bearing trust account. There is presently $116,622 in trust, as funds have been depleted to pay for counsel for the children, as well as payment of an interim lump sum spousal support order and outstanding costs orders. f. Ms. Theis owns a small business providing esthetic services. She has been unable to operate her business since March 25, 2020 pursuant to the Ontario government order regarding non-essential business, in light of the COVID 19 pandemic. She states that she had not worked much in the weeks previous to the mandatory shutdown of her operations. g. Ms. Theis continues to be obliged to pay rent and utilities for her business, as well as personal expenses for herself and for the children when they are in her care. h. Ms. Theis will apply for the Canada Emergency Response Benefit which she anticipates will provide her with $2,000 per month. However, she expects that this will take several weeks and will not cover all of her expenses. She expects that even after her business reopens, it will take a while to rebuild her client base. i. Ms. Theis also states that Mr. Theis is presently in arrears of child support in the amount of $4,682.26. The monthly child support amount is $1,348.00. j. Ms. Theis states “I am experiencing dire financial circumstances and am seeking an order for the release of $85,000 from the sale proceeds which is the majority of my share from the matrimonial home.” She states that from that amount she requires almost $30,000 for legal fees (fees owed plus retainer).

[10] At this time, the evidence does not support a finding that Ms. Theis is in dire financial circumstances. It may be that she is, but that evidence is not before the court. To be able to make an assessment of her circumstances, and of her corresponding need, the court would require evidence including but not necessarily limited to the following: a. Ms. Theis’ previous income was before the COVID 19 situation; b. Ms. Theis’ total income is now from all sources; c. Ms. Theis’ personal and business expenses; and d. the extent of Ms. Theis’ resources more generally.

[11] No financial statement accompanied the motion materials. Given that part of the test is “dire issues related to the parties’ financial circumstances” and given the nature of the relief requested, an up-to-date financial statement would be essential.

[12] The results of any application for provincial or federal funds, or the anticipated timeline for a determination of such application for funds, would also be important evidence for the court.

[13] There appear to be outstanding property issues between the parties. Although Ms. Theis has framed the request as one for payment of funds from “her share” of the proceeds of sale, without a net family property statement it is unclear how equalization obligations could impact ultimate payment from the proceeds of sale or what will ultimately be found to be “her share.”

[14] In the circumstances, this motion is dismissed, without prejudice to Ms. Theis to renew her motion with more fulsome evidence of her financial circumstances. Counsel should be aware that although this matter has been before the courts for some time, judges do not have access to the physical files at this time and have before them only the materials submitted electronically.

[15] This Endorsement shall be promptly served on Mr. Theis in accordance with Rule 25(13).

[16] If the parties are able to resolve this issue through negotiation, the court will accept a 14B motion for a consent order.

[17] The parties should bear in mind that costs may follow if this motion ultimately proceeds and a party is found not to have acted reasonably on this issue.

[18] In view of the current circumstances of the court, this endorsement is effective when made. There is no need for a formal order of the court.

L. Madsen J DATE: April 1, 2020