Court File and Parties

PETERBOROUGH COURT FILE NO.: FC-21-127 DATE: 2021-06-24 SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Sarah Gould, Applicant AND: William Jackman, Respondent

BEFORE: The Honourable Mr. Justice R.E. Charney COUNSEL: Shonagh Pickens, Counsel for the Applicant Shannon Smith, Counsel for the Respondent HEARD: In-Writing

Endorsement

[1] The applicant, Sarah Gould, brings this motion for an order that she may bring a motion in advance of a Case Conference on an urgent basis to seek the partition and sale of the matrimonial home and interim spousal support.

Facts

[2] The parties were married on August 11, 2012 and separated almost two years ago on October 1, 2019. The respondent remained in the matrimonial home and the applicant moved in with her parents on a temporary basis.

[3] The applicant commenced this proceeding by way of Application on April 28, 2021. No case conference has been scheduled.

[4] The applicant alleges that when they separated, the respondent agreed to purchase her interest in the matrimonial home, but he has taken no steps to do so.

[5] The applicant has been told by her parents that she is "not welcome to stay at their home indefinitely". The applicant is a recipient of the Canada Pension Plan Disability Program and receives $595 per month. She needs the money from the sale of the matrimonial home in order to be able to afford to rent her own place.

[6] The applicant alleges that the respondent's salary is approximately $52,000 per year, while her income is only $7,184 per year. She requires spousal support to help her move and pay her rent.

[7] The respondent takes the position that this application is not urgent. He has been maintaining the matrimonial home since separation. He served his responding material on May 31, 2021, and his completed Financial Statement and Notices of Assessment were served and filed on June 16, 2021.

Analysis

[8] Rules 14(4) and (4.2) of the Family Law Rules provides that no motions may be heard before a conference dealing with the substantive issues in the case has been completed, unless the court is satisfied that there is a situation of urgency or hardship. Courts have generally held that situations of urgency or hardship contemplates issues such as abduction, threats of harm, or dire financial circumstances: Rosen v. Rosen, 2005 CanLII 480; [2005] O.J. No. 62 (Ont. S.C.). A case in which one party denies parenting time to the other without any judicial authorization may also fall into this category: Endicott v. Endicott, 2015 ONSC 3180, at paras. 9 and 10.

[9] Dispensing with a case conference is an exception to the procedural requirements that should be made infrequently: Gonzales v. Trobarovic [2014] O.J. No. 4384, at para. 24. Every effort must be made to schedule a case conference in a timely manner before such motions are heard: Rosen, at paras. 7 and 8. The parties should have an opportunity to engage in settlement discussions to try to reach an agreement before or at the case conference.

[10] The parties in this case have been separated since October 2019, and it is unclear from the affidavit material why the applicant waited until April 2021 to commence her Application. While I fully understand her parents' sentiment that she is "not welcome to stay at their home indefinitely", this does not, at this point, rise to the level of urgency or undue hardship. It is not clear what, if anything, has changed over the past two years that would require this motion to be heard before a case conference.

[11] If the parties are unable to reach an agreement whereby the respondent is able to purchase the applicant's interest in the matrimonial home, it may be that the sale of the home on the open market is inevitable: Khan v. Khan, 2019 ONSC 4687, at paras. 10 – 22; Collini v. Collini, 2020 ONSC 3924, at paras. 4 and 5; McNeil v. McNeil, 2020 ONSC 1225 at paras. 24 – 27. The parties should keep that in mind throughout their negotiations.

Conclusion

[12] The applicant's motion for leave to bring an urgent motion before a case conference is dismissed.

[13] The respondent has requested costs if the applicant's motion is dismissed. In my view, this is not an appropriate case for costs. Very few materials were filed by either side with respect to this motion and costs should be minimal in any event. The parties are at the beginning of the application process, and they should focus their resources and energies on resolving the outstanding substantive issues.

[14] The Case Conference is scheduled for January 24, 2022 at 3:30 p.m. Case conference briefs to be filed in accordance with the Family Law Rules.

Justice R.E. Charney

Date: June 24, 2021