COURT FILE NO.: FS-20-00016-0000
DATE: 2020-09-21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Ruth A. JOVANDIN, Applicant
AND:
Alberto GALORINI, Respondent
BEFORE: Kurz J.
COUNSEL: Ruth Jovandin, Self-represented
Alberto Galorini, Self-represented
HEARD: In Chambers
ENDORSEMENT
[1] The Applicant seeks leave to move for what appears, from her 14B motion form, to be an urgent motion for exclusive possession of a matrimonial home. The urgency appears to be that she has lost her job. I use the term “appears” numerous times in this endorsement since the self-represented Applicant’s materials are difficult to comprehend. There may be a language barrier.
[2] The process in which she makes her request is improper, as the Chief Justice’s May 19, 2020 Notice to the Profession for the Central West Region (https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-cw/#Urgent_Family_Matters) requires a letter of up to two pages, setting out the urgency of the request for relief. Nonetheless, because of the potentially twin challenges of self-representation and the need to prepare materials in what may be a second language, I have considered the request as if it had complied with the Notice.
[3] There are a number of significant problems with this request. First, the relief sought is not clear. As set out above, from the 14B notice of motion, it appears that the Applicant seeks leave to bring a motion for exclusive possession of the home she occupies. However, from the draft order she includes, it appears that she seeks more than that: partition and sale of the home and the right to all of the proceeds of that sale. I say that because her draft order states, in her words:
i would to take complete possession with all proceeds as well as to sell without his consent nor his involvement on the listing. i have made renos which he agreed too pay half for which he hasn't. i am deep financial trouble and i need to able to sell this home immediately.
[4] Second, with regard to the notice of motion’s reference to possession of the home, the Applicant and the Respondent do not appear to be married. She does not check off the box in her Application that says that they were married or the date of the marriage. She also does not check off a box that states that she is seeking a divorce. Rather, she checks a box and sets out a date for the commencement of the parties’ cohabitation. Nonetheless, while she does not seek a divorce, she still sets out grounds for a divorce (each of separation, adultery, and cruelty). In sum, it appears from the application that the parties cohabited and never married, although that is not certain from the materials before me.
[5] Under s. 24 of the Family Law Act, an order of exclusive possession of a matrimonial home is only available to married parties. Therefore, assuming that exclusive possession of a “matrimonial home” is what she seeks and that the parties never married, the court appears to have no jurisdiction to grant that relief.
[6] Third, the Applicant does not set out who owns the property which she seeks to sell. Nor is it clear from her materials why it is that she says that she should be entitled to the entire proceeds. She refers to the Respondent making the down payment on the home.
[7] Fourth, the Applicant states that the Respondent is presently residing in Serbia (although she also says that he resides in a “reality TV” programme). Therefore it is not clear why she urgently needs an order granting her some form of exclusive possession, even if she were entitled to seek it. From her narrative, the Respondent is half a world away.
[8] Fifth, to the extent that she is seeking partition and sale of the home, there does appear to be financial urgency (see: Thomas v Wohleber, 2020 ONSC 1965). However, it is not clear that she holds any title to the home, or who does hold that title. She would have to have some legal claim to joint tenancy or tenancy in common before the court could consider a motion for partial summary judgment under the Partition Act with regard to partition and sale of a co-owned property.
[9] Sixth, the Applicant has not provided any evidence of service or even an attempt at service of either her application or her 14B motion upon the Respondent. If the Respondent resides in Serbia, the Applicant would have to serve him in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“the Hague Service Convention” or “the Convention”). There is no judicial discretion in that regard as the Convention is a complete (Khan Resources Inc. v. Atomredmetzoloto JSC, 2013 ONCA 189 at para. 49). Serbia is a signatory to that convention (https://www.hcch.net/en/states/hcch-members/details1/?sid=65).
[10] Because the Family Law Rules do not explicitly set out the requirements for service abroad under the Hague Service Convention, the applicable rule that applies by analogy (under r. 1(7)) is r. 17(05)(3) of the Rules of Civil Procedure (Wang v. Lin: 2016 ONSC 3967 (Ont. Div. Ct.) at para.96).
[11] One exception to the strict application of the Convention’s service rules may arise if the Applicant requires urgent relief without the ability to effect proper service. Under art. 15 of the Convention, she may be entitled to request “provisional or protective measures” from this court.
[12] To be able to obtain relief under art. 15, the Applicant would have to demonstrate both urgency and her attempt to properly serve the Respondent under the Hague Service Convention. In Wang v. Lin at para. 96 the Divisional Court stated: “[t]his factor [i.e. urgency] implies that there is a sense of urgency about this matter, which is being frustrated by delays resulting from the need to comply with the Hague Service Convention.” If that is the case, the Hague Service Convention “provide[s] a party the ability to request emergency relief while efforts to comply with the terms of the convention are being effected.”
[13] Accordingly, a moving party seeking an order on the basis of urgency under art. 15 of the Hague Service Convention without having effected proper service under the Convention must prove:
a. The urgency of her situation. The term, urgency, refers to a concept that is not defined under the Hague Service Convention. But urgency in the Canadian family law context is defined by cases under r. 14(4,.2) of the Family Law Rules and this Court’s practice direction (see e.g. Rosen v. Rosen, 2005 CanLII 480 (ON SC), [2005] O.J. No. 62 at para. 6-12, Thomas v Wohleber, above, and Clemente v. O’Brien, 2020 ONSC 3287, at para. 21 – 30);
b. Their attempts to comply with the Hague Service Convention, or at the very least evidence of why the moving party has yet been unable to make such attempts;
c. That the measure requested represents “provisional or protective measures” under the Hague Service Convention. Again, those terms are not defined under the Convention. I am unaware of any Canadian cases that have defined the terms for the purposes of the Convention. However I note that the Canadian Oxford Dictionary defines the term, provisional, as “”proving for immediate needs only; temporary”. It also defines the term, protective, as “protecting, intending to protect” Accordingly“, and without attempting to definitively define those terms for the purposes of art. 15, any application under art. 15 will have to aver to the applicability of those two terms.
[14] For the reasons set out above, the Applicant’s request for an urgent motion is dismissed without prejudice to her right to make a proper request, in letter form, of up to two pages, that meets the concerns set out above.
[15] I strongly recommend that the Applicant obtain legal advice from a family law lawyer before she makes any further request to bring an urgent motion.
[16] If the Applicant cannot afford counsel, I suggest that she consider the resources set out in the Notice Regarding Legal Advice for Self Represented Parties, attached as Schedule A to this endorsement.
[17] I am not seized of this matter. However, this endorsement should be brought to the attention of the presiding judge should this request return to court.
“Marvin Kurz J.”
Electronic signature of Justice Marvin Kurz,
Original will be placed in court file
Date: September 21, 2020
Schedule A to Endorsement of Kurz J. of September 21, 2020
NOTICE REGARDING LEGAL ADVICE FOR SELF REPRESENTED PARTIES
If you are presently self-represented and:
• wish to retain a lawyer, a directory of local Halton lawyers is available at https://haltoncountylaw.ca/membership-directory/ and local Peel lawyers at https://www.plalawyers.ca/member-directory.html;
• wish to retain a lawyer for only a limited scope of service, including just for this motion, you may seek the name of lawyers who accept such limited scope retainers at the Law Foundation of Ontario’s Family Law Limited Scope retainer Project at https://www.familylawlss.ca/
If you choose not to retain a lawyer, information regarding court procedures is available as follows:
For Family Law matters:
• You may consult the Law Society of Ontario’s emergency family law referral telephone line. This service will connect self-represented persons with family lawyers, working on a pro bono (free) basis. Those lawyers will provide up to 30 minutes of legal advice specific to determining whether or not a person’s family court matter is urgent and make referrals to other available legal services.
Self-represented persons may contact the Law Society emergency family law referral telephone line by phone at the following numbers:
Toll-free: 1-800-268-7568
General: 416-947-3310
• A link to the Superior Court of Justice’s website offering information about the documents that must be filed to bring a family law motion and what will happen during that motion can be found at:
ontariocourts.ca/scj/news/publications/guide-family/#Motions
• A link to the Family Law Rules, and in particular Form 14A – Affidavit, can be found at ontariocourts.ca/scj/family/legislation-forms.
• Legal Aid Ontario: you may call 1-866-874-9786 or 416-204-7104 for assistance, although it is likely that only limited services are available for litigants who do not qualify financially for Legal Aid Services. There may be an exception for cases that involve domestic violence.
If you are a victim of domestic violence, you may also contact:
• the Barbra Schlifer Commemorative Clinic at 416-323-9149 x 234, or fill out their intake form online at http://schliferclinic.com/intake/
• Luke’s Place at 905-728-0978 ext. 221
the assaulted women’s hotline at 1-866-925-4419