Court File and Parties
Court File No.: CV19-2020 Date: 20200417 Superior Court of Justice - Ontario
Re: Lisa Marie Brindley, Applicant And: Catherine Diane Silver and Heather Michele Connor, Respondents
Before: Justice R. Raikes
Counsel: Sheryl M. Feagan - Counsel, for the Applicant T. Oldfield - Counsel, for the Respondents
Heard: April 17, 2020 (by teleconference)
Endorsement
[1] The Applicant brings a motion, inter alia, for an order:
- extending the time period within which the Applicant is entitled to file an election in the office of the Estate Registrar for Ontario or elsewhere, pursuant to s. 6(10) of the Family Law Act, R.S.O. 1990, c. F3;
- extending the time period after which the Applicant shall be deemed to have elected to take under the Last Will and Testament of Ronald William Brindley dated April 12, 2019 pursuant to s. 6(11) of the Family Law Act;
- extending the time period set out in s. 7 of the Family Law Act with respect to the commencement of an application pursuant to subsection 5(2) of the said Act;
- directing the Respondents to produce to the lawyers for the Applicant all ownerships, keys and other relevant documentation currently in their possession and/or related to the chattels listed in para. 5 of the order of Madam Justice Templeton dated February 12, 2020 pending finalization of an inventory of chattels by certified appraisers;
- prohibiting the Respondents from advertising for sale, selling, transferring, encumbering, disposing of or otherwise dealing with or depleting in any manner whatsoever, any assets received by the Respondents from the deceased prior to his death, subject to agreement by the parties in writing or further order of the Court, and/or distributing the assets of the Estate, subject to agreement by the parties in writing or further order of the Court.
[2] This matter came to me as the triage judge for determination as to whether it meets the requirement for urgency contemplated by the Chief Justice’s order dated March 16, 2020. That order suspends the regular operations of the Superior Court of Justice because of the COVID-19 pandemic. Access to the Court for determination of urgent or emergency civil motions remains available.
[3] The Applicant submits that there is urgency; in particular, the Applicant was required to make an election on or before April 12, 2020 with respect to the Estate of the late Ronald William Brindley under the provisions of the Family Law Act. The motion was brought before that date passed.
[4] On March 20, 2020, the Province of Ontario ordered under subsection 7.1(2) of the Emergency Management and Civil Protection Act (“EMCPA”) that limitation periods be suspended retroactive to March 16, 2020 for the duration of the emergency. Paragraph 2 of the order is more relevant here. It provides:
- Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended preceding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.
[5] The affidavit evidence filed in support of the motion establishes that intended proceedings were contemplated before April 12, 2020.
[6] I find that the wording of para. 2 quoted above is very broad and captures the requirement for an election by the Applicant and the filing of that election under the Family Law Act. Accordingly, the time period within which the Applicant must make and file her election is tolled effective March 16, 2020 for the duration of the emergency, subject to the discretion of the court.
[7] I am aware of no compelling reason why my discretion should be exercised to set aside the effect of the emergency order, nor was one submitted by counsel for the Respondent. He agreed that the wording of the order applies to the Applicant’s requirement to elect and file her election. He was prepared to agree to an extension of 30 days from April 12, 2020 regardless of this provision.
[8] The same reasoning applies to the requested relief set out in para. 1, items 2 and 3 above. The time period is tolled until the emergency is done at which point it resumes running. The time tolled between March 16 and April 12, 2020 will then run subject to any order made at that time to extend it further. The Applicant is at liberty to renew her request for an extension then. Her motion seeking such relief nunc pro tunc is before the court.
[9] Because of the effect of the order tolling the election and the consequences of same, I am not satisfied that that portion of the motion is urgent. It seems to me that the order under the EMCPA gives the Applicant what she seeks in her motion – an extension of time. If the emergency ends and she still wishes an extension, she can bring her motion back on for hearing.
[10] With respect to the balance of the motion, counsel will be seeking instructions from their respective clients and will be discussing whether a cooperative arrangement can be found to obviate the need for the balance of the motion. To date, a profound lack of trust and enmity on both sides has prevented what should be a straightforward and practical approach from taking hold.
[11] I have adjourned the matter to May 4, 2020 at 10:10 a.m. to allow counsel to obtain instructions and engage in discussions. The purpose of the conference call on that date will be to determine whether the Applicant wishes to proceed with the balance of the motion. If so, I will have to determine whether the urgency criterion is met.
[12] To be clear, my determination above is not a determination on the merits of the Applicant’s motion; rather, it is only a determination of urgency in respect of part of the relief sought, as required by the order of the Chief Justice.
[13] Costs of the attendance today are preserved.