Court File and Parties
Newmarket Court File No.: FC-18-56374-00 Date: 2020-06-18 Superior Court of Justice - Ontario
Re: Susan Lynn Jerome, Applicant And: Brian Earl Jerome, Respondent
Before: The Honourable Mr. Justice D.A. Jarvis
Counsel: Helen McCullough, Counsel for the Applicant Glenn Ridler, Counsel for the Respondent
Heard: In Writing
Urgent Motion Request
[1] As a result of COVID-19 regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario [“the Chief’s Notice”] and as locally revised effective as of May 19, 2020.
[2] The applicant (“the wife”) has brought a motion for leave to bring an urgent motion to require the respondent (“the husband”) to maintain court-ordered support and expenses, disclosure and listing of the matrimonial home for sale without the husband’s signature. On October 30, 2019 Bennett J. made an Order (“the Order”) the terms of which included the listing of the home for sale, the winding-up of the jointly owned family landscaping business, disclosure and payment of various household and personal use expenses from the business account. The wife says that the husband is not complying with the Order and has re-directed funds belonging to the family business to another account or accounts beyond the reach of the Order.
[3] The husband submits that that there is nothing urgent or of pressing importance with respect to the wife’s request. He points out that the motion was unexpected as there had been no meaningful contact between the parties dealing with its subject matter. The Order provided that each party would be able to withdraw $2,500 monthly from the business account and the wife an additional $1,500: the wife was to pay the household expenses from her $2,500.
[4] On May 27 and again on May 29, 2020, the husband made two $10,000 withdrawals and transferred the funds to undisclosed accounts, thereby putting the business account into a deficit and preventing the wife from being able to fund the household expenses. She currently earns about $800 a month performing housekeeping services. The husband does not address what he did with those funds.
[5] The Chief’s Notice states that a dire financial circumstance will meet the urgency test. The example given is the need for a non-depletion Order. In Thomas v. Wohleber, 2020 ONSC 1965, para. 38, Kurz J. framed a dire financial circumstance as one affecting the economic well-being of a party. In Clemente v. O’Brien, 2020 ONSC 3287, McGee J. interpreted the expanded ambit of permissible urgent motions as revised by the Chief’s Notice to matters of pressing importance to align with the urgency test set out in Rosen v. Rosen, an approach with which I agreed in Desimone v. Desimone, 2020 ONSC 3361. Notwithstanding the usual precondition for granting leave that there be evidence of settlement discussion efforts, the unexplained depletion of the business account funds by the husband elevates the wife’s motion to one of urgency and raises a serious concern about his financial probity.
[6] The wife’s request for an urgent motion is granted. The following directions shall apply; (a) Subject to (h) below, the court administration shall schedule the first available date for the hearing of the wife’s motion; (b) The relief sought by the wife shall be that set out in her Notice of Motion dated June 11, 2020. It is not necessary that the wife relief this motion; (c) No other motion or request for relief shall be heard except as set out in the wife’s Notice of Motion; (d) The wife shall have the option of filing with the court any additional material upon which she may wish to rely by June 22, 2020 (4:00 p.m.). She may rely on her previous affidavits filed to-date; (e) The husband shall be entitled to respond to the wife’s material in (d) by June 24, 2020 (4:00 p.m.); (f) Reply (if any) by the wife to be delivered by June 26, 2020 (4:00 p.m.); (g) The materials in (d) to (e) shall be limited to four pages, double-spaced and, in the case of (f), two-page, all exclusive of exhibits; (h) The court administration shall schedule the motion to proceed as soon after June 26, 2020 as practicable; (i) Forty minutes shall be allocated to the motion: each of the parties shall have fifteen minutes to make submissions; the wife shall have a five-minute right of reply. The balance of time is for the court. These times may be expanded by the judge hearing the motion; (j) If the wife is seeking disclosure, she must include a Schedule as an exhibit to her material identifying what is required and/or what remains outstanding. The husband should be prepared to respond to that request; (k) The husband shall pay to the wife her costs of this leave motion in the amount of $1,000, inclusive of disbursements and HST.
[7] The Order contemplated the sale of the jointly-owned matrimonial home. That will be, in the circumstances of this case, the inevitable result even though the husband had, at some more recent point in time, contemplated trying to acquire the wife’s interest in the property. The parties should take all reasonable steps to sell the property before the motion is heard and to agree on what disclosure is outstanding. The husband should have a far more transparent explanation for the application of the funds from the now-depleted business account: it is a reasonable inference that he works in a field that where unreported income is not uncommon.
[8] Each of the parties claimed $1,500 costs from the other. The wife was the successful party but provided no evidence why there seems to have been no meaningful contact between counsel to move this case forward before the wife’s motion was started.
[9] In the circumstances of the COVID-19 emergency, this Order is operative and enforceable without any need for a signed or entered, formal, typed Order. Approval is dispensed with. The parties may submit a formal Order for signing and entry once the court re-opens.