Court File and Parties

Court File No.: FC-21-00057003-0000 Date: 2022/12/12 Superior Court of Justice - Ontario

Re: Debra Nugent, Applicant And: Jeffrey Nugent, Respondent

Before: Justice Lene Madsen

Counsel: Julie K. Hannaford, Counsel for the Applicant Brian R. Kelly, Counsel for the Respondent

Heard: In Chambers

Endorsement

[1]. Ms. Nugent brings an urgent motion on an ex parte basis seeking a temporary without prejudice Order that Mr. Nugent be restrained from depleting his assets and that he preserve his assets.

[2]. Ms. Nugent deposes that she learned on Thursday December 8, 2022 that Mr. Nugent had recently taken steps to withdraw $1.25 million dollars from a specific account, which, by agreement, were not to be distributed without her consent. After separation, Mr. Nugent had agreed to put a dual signature requirement on the account, which she says Mr. Nugent has now unilaterally changed without notice to her and without her consent.

[3]. Ms. Nugent deposes that she has learned that Mr. Nugent has used the funds in question to pay off two lines of credit, as well as his Mastercard. Her information is that he has also put some of those funds in a term deposit. Ms. Nugent points out that these transactions were not reflected in Mr. Nugent’s updated financial statement sworn December 5, 2022, for the Med-Arb process.

[4]. Ms. Nugent deposes that she is worried that Mr. Nugent will take steps to compromise her family law entitlements. She has not served him with this motion for fear that he will deplete further assets pending the hearing of a motion on notice.

[5]. On August 3, 2022, a Court Order was made which confirmed that all issues in the parties’ litigation would be submitted to Mediation-Arbitration with Gerald Sadvari. They entered into a Mediation-Arbitration Agreement on September 28 and 30, 2022. Under that Agreement, all issues in the proceeding are to be mediated, and if necessary, arbitrated.

[6]. The Mediation-Arbitration Agreement is entered into under the Family Law Act and the Arbitration Act. The Family Law Rules also apply.

[7]. Under section 6 of the Arbitration Act, the court retains jurisdiction to intervene in the conduct of an Arbitration to “assist in conducting” an arbitration, to ensure that arbitrations are conducted in accordance with arbitration agreements, and to prevent unfair or unequal treatment of parties to arbitration agreements.

[8]. Under section 8 of the Arbitration Act, the court specifically retains the power to intervene with respect to the preservation of property. That section reads: “The court’s powers with respect to the detention, preservation, and inspection of property, interim injunctions and the appointment of receivers are the same in arbitrations as ion court actions.”

[9]. I have considered whether this motion should have been brought before Mr. Sadvari, on notice or otherwise. While the motion could likely be brought ex parte, given the applicability of the Family Law Rules to the any Arbitration under that Agreement, practically speaking that is not helpful. Any Arbitration Award made by Mr. Sadvari would be unlikely to be enforced by financial institutions without having been taken out as a Court Order. Meanwhile, time would pass during which further dissipation could transpire, if that is indeed happening.

[10]. In all of the circumstances, the Order sought by Ms. Nugent is, on a temporary and without prejudice basis, appropriate in the circumstances.

[11]. Having been brought ex parte, this matter shall be returned to court promptly as required under Rule 14 of the Family Law Rules. The return of the motion is set to Wednesday, December 21, 2022 at 10:00 a.m., by Zoom.

[12]. Mr. Nugent shall have until Friday, December 16, 2022 to serve and file responding materials. Ms. Nugent shall have until Tuesday, December 20, 2022 to serve and file any Reply materials.

[13]. Both parties are reminded of the limitations on the length of materials as set out in the Notice to the Profession dated August 2, 2022.

[14]. Both parties shall file their materials through the portal, but in view of the short timelines shall also email their materials to waterlooregionfamily@ontario.ca to assist in ensuring that the materials are before the judge hearing the return of the Motion.

L. Madsen, J.

Date: December 12, 2022