COURT FILE NO.: FS-18-93577 DATE: 20200406
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Clifford Booth, Applicant AND: Michelle Yvette Marie Bilek, Respondent
BEFORE: The Honourable Justice D. Baltman
COUNSEL: Shawn Philbert, for the Applicant Carolyn J. Chambers, for the Respondent
HEARD: April 3, 2020 (In writing)
E N D O R S E M E N T
[1] The Respondent Wife/Moving Party (Ms. Bilek) seeks an order staying the portion of the final order of Justice Miller dated March 10, 2020, that directs the removal of a preservation order that prevents the Applicant Husband/Responding Party (Mr. Booth) from depleting his RRSPs.
[2] This motion was brought as an “urgent” matter, when normal court operations are closed due to the COVID-19 epidemic. See the “Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings” (“the Notice”): https://www.ontariocourts.ca/scj/covid-19-suspension-fam.
[3] Under that directive, only the most urgent matters will be heard by the Superior Court. As that includes the placement of a non-depletion order, it arguably also includes a motion to stay the removal of a preservation order.
[4] After this motion was brought to my attention, I determined that it would be heard entirely in writing. By its nature, this motion can be fairly adjudicated in writing. This also accords fully with the Notice, which stipulates that “the judge will determine the manner of hearing” and “matters may be heard and determined in writing, by telephone or video conference.” (my emphasis)
[5] Pursuant to my instructions, my assistant emailed both counsel at 9:03 a.m. on Wednesday, April 1, 2020 advising, amongst other details, that I will be considering the motion “solely based on written submissions” (my emphasis). As here, those words were bolded in the email to ensure counsel understood how the motion would be heard. In the same email, counsel were advised that I would consider this matter on April 3, 2020 and release my decision in writing thereafter.
[6] Therefore, it was surprising to receive Ms. Chambers’ email on Thursday, April 2, 2020 at 4:54 p.m. (i.e. nearly two working days after being told the hearing would proceed in writing) stating that she “was under the impression that [she] would be permitted to make oral arguments” before me. She apparently overlooked the email she received stating the hearing would proceed in writing.
[7] Turning now to the issue before me, the test for staying an order pending appeal derives from r. 63.02 of the Rules of Civil Procedure. That requires the court to consider the following factors: (1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits: Zafar v. Saiyid, 2017 ONCA 919, at paras. 17-18.
[8] The test is cumulative, meaning the appellant must satisfy all three prongs in order to achieve a stay. Moreover, the appellant carries the burden of proof.
[9] The “Summary of Argument” supplied by Ms. Bilek’s counsel focussed primarily on irreparable harm and the balance of convenience. In this case, however, I am not persuaded that the first criterion has been met. While the threshold to establish “a serious question to be tried” is low, I see little if any merit to the appeal.
[10] Ms. Bilek’s Notice of Appeal contains only one ground, namely that the trial judge erred in her interpretation of s. 5(6) of the Family Law Act in determining whether there should be an unequal division of property based on unconscionability.
[11] That issue was given extensive consideration by Justice Miller. She properly identified the governing legal test and the applicable case law. She recognized that the threshold for unconscionability is very high. She then considered the many relevant factors, the vast majority of which were undisputed. In particular, she noted:
- The parties were married for 3.5 years and cohabited for less than one additional year;
- There are no children of the marriage;
- The disparity in their ages (at trial he was 69, she was 46);
- Ms. Bilek did not have a “traditional role” within the marriage, as she had no childcare or household management responsibilities;
- Ms. Bilek received $199,302 – half the value of the matrimonial home - to which she had made no direct contribution;
- Her sole financial contribution was to pay for approximately 10% of the renovations to the first matrimonial home;
- The $16,000 in improvements she did contribute came from a condominium which Mr. Booth entirely financed before the marriage;
- The difference in net family properties was almost entirely attributed to the growth in Mr. Booth’s investments over the course of the marriage, which he had not contributed to during the marriage;
- The investments comprise the bulk of what Mr. Booth has to live on in his retirement.
[12] In sum, Justice Miller concluded, on solid ground, that Ms. Bilek was “much better off financially” than she was upon entering the marriage, with “little if any financial contribution on her part”.
[13] It therefore appears that Miller J. did precisely what was required under s. 5(6) of the Family Law Act. She looked carefully at the backgrounds and marital contributions of both parties, determined that an equal division would be “unconscionable”, and fixed what she regarded as a reasonable figure. I see very little, if any, merit to the appeal and find there is no serious question to be tried.
[14] At para. 18 of Zafar, the court emphasized that the overarching consideration for a stay is whether or not it is within the interests of justice. As the bar must be well aware by now, the COVID-19 pandemic has significantly restricted judicial and court resources. When that is considered alongside my finding that there is no serious issue to be tried, I conclude it is not necessary to consider the two other criterion for a stay.
[15] For those reasons, the motion for a stay pending appeal is dismissed.
[16] The parties should make every effort to resolve costs of this motion.
Baltman J. DATE: April 6, 2020