Bourque v Luker, 2025 ONSC 941
Court File No.: 208-21
Date: 2025-02-07
Superior Court of Justice – Ontario
Re: Stacey Ann Kathleen Bourque, Applicant
– and –
David Luker, Respondent
Before: Alex Pazaratz
Counsel:
Michaela Newman, Counsel for the Applicant
Respondent, Self-Represented
Endorsement
Opening Observation
If you start it, finish it.
This is among the increasing number of family court files which start strong, then people lose interest. Nothing happens for a long time (sometimes years). And then periodically the parties bring motions for more interim orders, when they could have obtained a final order long ago.
Background
In this case:
a. The parties started living together on July 1, 2016.
b. They separated September 23, 2020.
c. They have two children, then ages two and seven months (now ages seven and five). The children have remained with the Applicant mother.
d. They started their court case in 2021.
e. They obtained a series of interim orders.
f. The main application then fell into abeyance. It was last before the court (to be spoken to) on October 26, 2022.
g. But even after the main application was adjourned to the timelines, the parties continued to bring motions for more temporary orders. As recently as the summer of 2024, in relation to important parenting issues.
h. But there has been absolutely no movement toward a final order for more than two years. And there are no pending court dates.
The Present Motion
On January 17, 2025 the Applicant mother brought another motion, this time seeking the interim release of some net proceeds of sale.
The mother’s January 17, 2025 affidavit includes the following narrative:
a. The parties jointly owned a property as their family residence.
b. In October 2021 the home sold for $580,000.00. The net proceeds were $354,883.33.
c. By agreement, through a series of instalments each party has received a portion of their presumptive one-half entitlement to the net proceeds.
d. A total of $92,438.80 (plus interest) remains in trust. Of that amount:
i. $27,181.90 is the remaining balance of the mother’s half of the net proceeds.
ii. $65,256.90 is the remaining balance of the father’s half of the net proceeds.
e. On this motion the mother asks that her $27,181.90 be released to her immediately. But she wants the father’s $65,256.90 to be held in trust pending final determination of the issues (with no indication as to when that might be).
f. The mother is advancing claims in relation to property; ongoing and retroactive child support (including section 7 expenses); and post-separation adjustments. If she is successful on any of these claims she will also be seeking costs. She wants the father’s funds to be held as security for money he might end up owing her.
Response and Court’s Role
The self-represented father did not respond to the mother’s materials, nor did he attend the motion. But even though this motion is uncontested, the court still has an obligation to ensure that everyone’s rights are protected – including taxpayers who fund a court system overwhelmed with inefficient litigation.
Today’s motion – and some of the earlier interim motions – wouldn’t have been necessary if the parties had simply paid attention to the file, and pursued their respective claims diligently.
I’ll say it again: They could have had a trial by now.
The mother had no explanation as to why she has taken no steps to advance final resolution of the file. Or why issues are being addressed on a piecemeal basis, through recurring interim motions.
She wants the father’s remaining funds to be held as security for monies he may owe her. She did not quantify her potential entitlements, so I have no evidence as to whether the $65,256.90 she wants held in trust is more or less than what she might be entitled to.
The mother appears not to have contemplated the possibility that she might owe him some money at the end of the case. For costs, for example, if she is unsuccessful.
Since I have no evidence as to how this case is likely to turn out, it is impossible for me to determine how much additional money can safely be released to either party.
If she’s entitled to security in case she wins, shouldn’t he also be entitled to security in case he wins?
Notably, the mother gave no evidence that she actually needs the money at this time. And the father couldn’t even be bothered to respond to the motion, even though he’s got more than twice as much of his money tied up.
Disposition
The mother’s motion is dismissed. There is insufficient evidence.
But the mother’s motion shouldn’t have been brought in the first place.
Commentary on Interim Motions
- Motions for temporary relief are appropriate at the early stages of a court case. But once a temporary order is in place, that should be the end of the “motion stage.” Gafanha v. Gafanha, 2022 ONSC 1613; Crozier v. Nolin, 2024 ONSC 4343; Sham v. Lee, 2024 ONSC 6598; Persaud v. Jeffrey, 2024 ONSC 6678.
a. The older the court file – the longer the period since the initial temporary orders were granted – the greater the onus on lawyers and parties to explain why they are still litigating by motion and affidavit.
b. Late-stage motions are unfair to judges, parties and children, because the inevitably voluminous materials are untested, and the court is unable to make necessary factual and credibility determinations based on affidavits.
c. Where parties have had enough time to schedule a trial for a final order, they should no longer be litigating by motion seeking more temporary orders.
d. Our court system barely has enough resources to accommodate unavoidable motions. Unnecessary motions clog up the system and cause delay for families who truly require interim relief.
e. Endless motions for temporary orders with no apparent interest in proceeding to trial — this emerging trend is protracting litigation, driving up costs, frustrating litigants, and needlessly placing judges in the untenable position of having to decide complex issues based on inadequate information.
Next Steps
This file has to start moving toward a final resolution.
I am scheduling a Trial Scheduling Conference for June 2, 2025 at 3:30 p.m., with Justice Kril, by Zoom. The parties are to submit a joint Trial Scheduling Endorsement Form.
Justice Alex Pazaratz
Date: February 7, 2025