Court File and Parties
COURT FILE NO.: FC-19-191 DATE: 2020-05-11
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Julie Marie DePotter, Applicant Douglas Wesley Clinton Smith, Respondent
BEFORE: Madam Justice L. Madsen
COUNSEL: Walter Drescher, Counsel for the Applicant Cindy Martin-Hrycak, Counsel for the Respondent
HEARD: In Chambers
ENDORSEMENT – COVID-19 PROTOCOL
[1] AS A RESULT OF COVID-19, the regular operations of the Superior Court of Justice are 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 “dire issues regarding the parties’ financial circumstances…” This preliminary determination of urgency is an exercise of judicial discretion.
[3] Determinations of urgency are summary in nature, and wholly without prejudice to both parties on the hearing of the motion itself. A determination of urgency is not intended to be a motion unto itself and is intended to be simple and expeditious.
[4] Mr. Smith brings an urgent motion seeking to set aside the final order of Justice Nightingale, made April 20, 2020, and for permission to serve his responding materials within 15 days. He also seeks an order that Ms. DePotter stop depleting family assets and to provide him with a list of everything sold, moved, or removed from the family home.
[5] Mr. Smith filed the following documents by email to the Superior Court, in support of his urgent motion. Upon the resumption of normal court operations, counsel shall file the materials in the Continuing Record:
a. Notice of Motion dated May 8, 2020; b. Copy of the Order of Justice Nightingale made on an uncontested basis on April 20, 2020; c. Affidavit of Mr. Smith sworn May 8, 2020; and d. Affidavit of service indicating service of the materials by email to Ms. DePotter’s counsel.
[6] Briefly, Mr. Smith sets out the following in his affidavit:
a. Mr. Smith retained counsel, Ms. Martin-Hrycak, on September 4, 2019. b. On September 18, 2019, his counsel was provided with a draft separation agreement by Ms. DePotter’s counsel. Mr. Smith did not sign that agreement. c. On November 13, 2019, Mr. Smith was served with an Application and supporting documents. d. During the fall of 2019, Mr. Smith was preoccupied with criminal charges which he says Ms. DePotter “fabricated” against him. He says he was also trying to get access to the parties’ children. e. Mr. Smith says his counsel corresponded with Ms. DePotter’s counsel in December 2019 and it was clear that he is represented. f. Mr. Smith says Ms. DePotter told him in December 2019 and “well into the New Year” that she gave her counsel instructions for an offer to settle. He says he waited for that offer to settle, which never came. g. Mr. Smith did not file his Answer within 30 days as required under the Rules. h. In April 2020, Mr. Smith says he realized that Ms. DePotter was “removing everything.” Ms. DePotter said she would not deal with him anymore and said she had a court order and that he was “screwed.” It appears that this is the first that Mr. Smith learned of the existence of the order of Justice Nightingale which he says was not served on him. i. Mr. Smith confronted Ms. DePotter following which he called the police. j. Mr. Smith says that neither he nor his counsel were given notice that Ms. DePotter was moving for a final order on an uncontested basis. k. Mr. Smith says his employment is currently hindered because Ms. DePotter has sold or given away his tools. He says he cannot afford to replace expensive equipment. He says the income of $45,000 stated in the Order of Justice Nightingale is incorrect and that Ms. DePotter knows this, as she listed his income as $30,000 in her Application.
[7] For the reasons set out below I find that this matter is urgent and should be referred to another judge for determination. In reaching that conclusion I have considered the applicable caselaw including but not limited to: Thomas v. Wohleber, 2020 ONSC 1965 and Baijnauth v. Baijnauth, 2020 ONSC 1974, which establish principles including the following:
a. To be an urgent matter within the meaning of the Notice to the Profession, the concern must be immediate, serious, definite rather than speculative, and clearly particularized; and b. A matter may be found to be urgent where deferring consideration to some unspecified time in the future, after COVID-restrictions have passed and the courts are reopened for business could cause significant financial hardship to the moving party.
[8] If it is accurate that Ms. DePotter moved on an uncontested basis with no notice to Mr. Smith’s counsel, and that the Order of Justice Nightingale was not promptly served on Mr. Smith, this is concerning. More than ever, during this challenging time, counsel need to work together to assist litigants in reaching resolution.
[9] While I am finding that the matter is urgent, I will require that the matter proceed to a case conference, before the motion can be heard. Discussion of the issues in this case with a judge may assist in resolving the matters in dispute. I am also, on a temporary temporary without prejudice basis, ordering that Ms. DePotter take no further steps to sell or remove Mr. Smith’s belongings. This is to avoid part of the motion becoming moot before it is heard.
[10] This matter should be addressed promptly with the benefit of the evidence of both parties. Deferring consideration of this matter until some unspecified time in the future could cause hardship to Mr. Smith.
[11] The next steps in this matter are the following:
a. Mr. Smith shall forthwith serve all of the materials filed with the court on counsel for Ms. DePotter; b. Ms. DePotter shall have until Friday, May 15, 2020 to serve and file responding materials; c. Mr. Smith shall have until Tuesday, May 19, 2020 to serve and file Reply materials, if any; d. Service of all materials related to this motion may be done by email; e. All materials shall be filed with the court at Kitchener.Superior.Court@ontario.ca with the style of cause and file number in the subject line of the email; f. This matter shall proceed to a case conference to be heard by Zoom or teleconference between May 20 and May 22, 2020. The Trial Coordinator will advise counsel of the date and time of the conference and the call-in details. No further materials, other than the motion materials, are required to be filed for the conference, except that counsel for Ms. DePotter shall ensure that the court is provided with an electronic copy of his client’s application; counsel for Mr. Smith shall file a draft copy of his client’s proposed Answer; and both parties shall serve and file up-to-date sworn financial statements. g. If the matter is not resolved at the case conference, this motion shall proceed between May 25 and May 29, 2020, at a time to be determined by the Trial Coordinator. In that event, the Trial Coordinator will advise counsel by email of the date and time of the motion and the call-in details.
[12] On a temporary temporary without prejudice basis, Ms. DePotter shall take no further steps to sell or remove any assets from the matrimonial home including but not limited to any tools, equipment, or vehicles owned by Mr. Smith at the date of separation. She shall serve and file a list of all such items sold or removed since the making of Justice Nightingale’s order before the hearing of the case conference, and she shall preserve any monies from items that she has already sold, if any. If items were sold, she list shall include the amount for which they were sold and to whom.
[13] Court staff are requested to serve counsel for both parties with a copy of this endorsement by email.
[14] Notwithstanding Rule 25 of the Family Law Rules, this endorsement is effective from the date it was made and is enforceable as an order of the court without the need for an order to be prepared or approved by the parties and then issued by the court. No formal order is necessary unless an appeal or a motion for leave is brought, or alternatively unless one is necessary for enforcement by a third party. A party who wishes to prepare a formal order for approval and issuance may do so and submit materials by Form 14B Motion Form to the court.