COURT FILE NO.: FC-18-1197
DATE: 2020/04/20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: John Brian Potvin, Applicant
-and-
Sophie Marie Lucille Boros, Respondent
BEFORE: Justice P. MacEachern
COUNSEL: Sarah Kennedy, Applicant’s counsel
Respondent, self-represented
HEARD: April 17, 2020, in writing, no one appearing
E N D O R S E M E N T
The Respondent has filed a Form 14B motion seeking an order permitting service of the motion materials by email; an Order that the Respondent be granted leave to file her Affidavit of Divorce; and such further and other Orders that this Honourable Court deems just and equitable.
The Respondent’s Form 14B indicates that it is a motion made “with notice to all persons affected – opposition expected”. I have not been provided, however, with an affidavit of service confirming that the motion material has been served.
The Respondent’s Form 14B is dated April 16, 2020. If the Respondent has served the motion material, Rule 14(11.4) provides that the Applicant may file a response no later than 4 days after the motion has been served. This time-period has not yet expired.
Of course, under the March 20, 2020 Order made under subsection 7.1 (2) of the Emergency Management and Civil Protection Act (https://www.ontario.ca/laws/regulation/200073) the time periods under the Rules are currently suspended retroactive to March 16, 2020, for the period of the emergency. This includes the time-periods under the Family Law Rules for responding to proceedings. However, a court may impose time-periods on parties by making an order.
The Ontario Superior Court of Justice is currently operating under a suspension of regular services. As of March 17, 2020, only urgent matters have been heard. On April 6, 2020, the court services were expanded to include, in the East Region, family motions under a Form 14B, either on consent or dealing with procedural or disclosure issues.
This motion is not on consent. Therefore, the question is whether this motion qualifies as a procedural motion.
The request for an order permitting service on the Applicant by email is procedural and, given the Applicant is represented by counsel, who apparently remains on the record, I would not normally require notice of a motion permitting service on the solicitor of record by email. However, such an order is not required. The Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings – Update, released on April 2, 2020 (see https://www.ontariocourts.ca/scj/notice-to-the-profession-the-public-and-the-media-regarding-civil-and-family-proceedings-update/) provides:
“Notwithstanding provisions in the Rules of Civil Procedure and the Family Law Rules and subject to an order of the Court directing otherwise, it is not necessary to obtain consent or a court order to serve a document by e-mail where e-mail service is permitted.”
This is not an originating process. The Family Law Rules permit service by email on consent. The April 2, 2020 Notice removes the need for consent.
The request for an order granting leave to file the Respondent’s Affidavit of Divorce is mis-framed. The Respondent effectively wants to seek a divorce, because the Applicant, who started this process by issuing an Application for a Simple Divorce in June of 2018, has not pursued it.
The proper course for the Respondent is to obtain leave to file an Answer to that proceeding, seeking a divorce herself, and then to proceed by bringing a motion for divorce, on notice, supported by her own affidavit for divorce, the marriage certificate, and the required clearance certificate that should be in the court file. But the court, in the East Region, is not currently processing motions for divorce. These are not procedural motions. I also note that Judges do not currently have access to the court file, and therefore Judges do not have access to the clearance certificate. While it may be that these issues with the court file could be addressed if this matter was urgent, I do not find that this matter is urgent. Although the Respondent’s affidavit sworn April 16, 2020 states she is engaged and wishes to marry, she does not state when she plans to marry or why obtaining a divorce is now “urgent”. Given this, any attempt by the Respondent to bring a motion for a divorce will need to wait until further expansion of court services.
I will allow the Respondent to file a Form 14B motion seeking leave to file an Answer to the original simple Divorce Application, seeking only a divorce. That motion should be served on the Applicant, and he shall have 10 days to file a response. I have extended this time from the 4 days provided under the Rules to allow additional time due to the current state of emergency.
In summary:
a. The Respondent’s motion dated April 16, 2020 is dismissed, with leave for the Respondent to bring a further Form 14B motion, on notice to the Applicant, seeking leave to file an Answer to the original simple Divorce Application, seeking only a divorce. That motion shall be served on the Applicant, and he shall have 10 days from the date of service to file a response.
Dated: April 20, 2020 __________________
Justice P. MacEachern