Court File and Parties

COURT FILE NO.: FC-19-929 DATE: 20200506 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sara Kane, Applicant AND: Klayton R. Kane, Respondent

BEFORE: The Honourable Justice J.P.L. McDermot

COUNSEL: Paul Portman, Agent for the Applicant Shannon L. More, Counsel for the Respondent

HEARD: By Written Submissions

Endorsement

[1] The Applicant brings a 14B motion for an urgent motion for the child support and for the sale of the matrimonial home.

[2] In her material, the Applicant says that she is paying half of the carrying costs of the matrimonial home even though she is no longer sharing possession of the home with the Respondent. She says that the Respondent has failed to attend to her offers to settle and has the ability to pay child support but refuses to assist with the costs of the children. She says that the financial issues are urgent.

[3] The Respondent points out that the Applicant fails to mention the Minutes of Settlement that the parties signed at a case conference on October 1, 2019 and reduced to the final order of Douglas J. made that day. Those Minutes addressed the issue of the sale of the matrimonial home. They state that the Respondent was required to obtain “a firm mortgage commitment for the amount of the buyout (calculated using the mutually agreed upon fair market value of $450,000 for the matrimonial home), which amount at this time is $219,500” by November 1, 2019. If he did so, the Minutes provide that “the parties will hold off on the listing and sale of the matrimonial home” and that this was “pending exchange of disclosure and calculation of the parties respective NFP values, the calculation of equalization and final post-separation adjustments, and thus calculation of the total funds payable to the Applicant.”

[4] The Respondent says that he has complied with the Minutes and that he has provided that commitment. That should answer the issue of the sale of the home. As well, the Respondent says that his business income, minimal at best, has been reduced by the closure of his non-essential industry during the Covid-19 shut down.

[5] I have also reviewed the continuing record. The last financial statement filed by the Applicant in July 2019 (when she was still living in the home) discloses that she was not then paying any of the carrying costs of the home. The Respondent says that since then, nothing has changed and that, other than the Rogers bill, the Applicant is not contributing to any of the carrying costs of the home.

[6] Regular operations of the Superior Court of Justice were suspended March 15, 2020 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”).

[7] The Notice provides that only motions concerning “dire issues regarding the parties' financial circumstances including for example the need for a non-depletion order” can be heard since the closure of the courts.

[8] The word “dire” goes beyond urgency. The Oxford English Dictionary defines “dire” as “extremely serious or urgent” circumstances or a threat “presaging disaster” (https://www.lexico.com/en/definition/dire). The financial circumstances surrounding the proposed motion must be extremely serious or threatening to come within the financial circumstances warranting a motion during the closure of the courts during the Covid-19 pandemic.

[9] The Applicant cited Thomas v. Wohleber, 2020 ONSC 1965 which is a case involving urgent financial issues warranting the hearing of a motion. However, that case involved the respondent removing more than $700,000 from the parties’ joint line of credit. There were obviously extremely urgent financial issues in that case considering that the amount removed from the line of credit was eleven times the Applicant’s income, and that respondent refused to return the funds to the line of credit. The present case pales in comparison, especially when the parties had agreed to delay the sale of the home in the event that the Respondent was able to obtain a commitment to purchase the Applicant’s interest in the home.

[10] More important, however, is the statement of Kurz J. in Thomas regarding the duty of counsel and the parties during the closure of the courts [at para. 39]:

The 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.

[11] This means, as stated by Pazaratz J. in the now-often cited case, Ribeiro v. Wright, 2020 ONSC 1865 “more cooperation” and “less litigation”. Counsel have an increased duty to negotiate and make all efforts to resolve litigation rather than resort to the very limited resources of the courts during closure. That does not appear to have been the case here, where the Respondent claims that the Applicant has not completed disclosure or provided the documents to obtain a pension valuation. She has not filed an updated financial statement and her last financial statement appears to indicate that she was not paying any of the carrying costs of the matrimonial home even when living under the same roof.

[12] You would have to ask how the Respondent is paying all of those carrying costs when he says he has no income, but, as with many other Canadians, he may be reliant upon emergency government funds. And a motion is not the place to impute substantial income to anyone; that generally only occurs at trial.

[13] I therefore find that the issues are insufficiently urgent to set a motion in this matter. The Applicant’s 14B motion is dismissed.

[14] This dismissal is without prejudice to the Applicant renewing the motion once she proves that she has complied with the disclosure requirements of the October 1 order and provided an updated financial statement and her pension information, but in no case earlier than 30 days from completion of those requirements.

[15] I agree, however, with the Respondent that a conference would be warranted in this situation once both parties have complied with the disclosure requirements in the October 1, 2019 order. Therefore, once disclosure is complete, if the parties are unable to negotiate a settlement, counsel have leave to set a conference before me through the trial coordinator. That may be set even if the courts remain closed and urgency warranting a motion can be determined at the conference in the absence of an agreement. Therefore, upon completion of disclosure, the parties have leave to contact the trial coordinator in Barrie (email barrie.scj.tc@ontario.ca) to obtain a date to return this matter to court for a case conference before myself.

[16] Costs of this motion are therefore reserved.

[17] Because of the Covid 19 emergency this order is being issued under my electronic signature. This order is enforceable without the present need for a signed or entered formal order/judgement. Once the Court resumes normal operations a copy of this order shall be filed with the court. This order is an effective and binding order through its issuance under my electronic signature and I am directing that the judicial assistant email a copy of this to the parties.

Justice J.P.L. McDermot Date: May 6, 2020