MOTION HEARD: 2026-05-20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MAHA MOHAMMAD ABU KIBASH, Applicant
- And –
MOSTAFA YOUSSEF GAMAL, Respondent
BEFORE: Associate Justice Kamal
COUNSEL: Sarah Kissi, for the Applicant
Ifewnyi, Nwkolo, for the Respondent
ENDORSEMENT
The Applicant brings an urgent motion for an order prohibiting the Respondent from selling, disposing of, or depleting his properties, surrender of the Respondent’s passport, payment of household expenses and loans, exclusive possession of the matrimonial home, sale of the home, and related orders.
This court attendance was only to determine whether this motion should be heard on an urgent basis.
A case conference has not been held.
The Applicant’s position is that the motion is urgent for the following reasons:
a. There are dire financial circumstances as a result of financial hardship.
b. The Applicant has been a stay-at-home mother and homemaker and was financially dependent on the Respondent.
c. The Applicant was dependent on the Respondent due to cultural and religious expectations imposed on her as a Muslim Arab woman.
d. The Respondent is highly educated and employed. He is trained as an engineer.
e. She suffered significant verbal, emotional, psychological, physical, financial, and sexual abuse at the hands of the Respondent.
f. The Respondent has paid no child support, spousal support, or expenses towards the home since leaving. The mortgage is in default, the hydro bills are in arrears, and property taxes are in arrears.
g. The bank has advised that if one more payment is missed, enforcement proceedings will commence.
h. The earliest case conference date is September 2026.
i. The Applicant is relying on OSAP loans to cover household expenses and will no longer be able to afford her education program.
j. The Applicant has begun taking steps to sell the matrimonial home, but the Respondent has delayed and resisted the process.
k. The Respondent has been acting unilaterally with respect to the sale of the matrimonial home, resulting in significant financial hardship.
- The Respondent’s position is that the motion is not urgent for the following reasons:
a. The matter has been ongoing and the issues have been outstanding since August 2025, and there is no urgency.
b. The Applicant does not meet the Rosen test.
c. The Applicant has not canvassed earlier conference dates.
d. The Respondent says he has covered the expenses for the home until he was no longer able to financially do so.
e. The Applicant has used the police as leverage and psychological abuse.
f. The parties obtained a joint appraisal on May 6, 2026, and are at the point of listing the house for sale.
g. The Respondent is suffering financial difficulties.
h. The Applicant withdrew $10,000 from the line of credit.
i. The Respondent says he never interfered with the Applicant working and he encouraged her to work.
- Rules 14(4) and 14(4.2) of the Family Law Rules, O. Reg. 114/99 (“FLRs”), set out the general requirement that a case conference must be held before a motion may be heard, and the exceptions to that requirement:
(4) No notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed.
(4.2) Subrule (4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.
The onus is on the Applicant, as the moving party, to establish that there is a situation of urgency or hardship or other reason in the interest of justice that his motion should be addressed before a Case Conference.
Rosen v. Rosen 2005 480 (ON SC), [2005] O.J. No. 62 (S.C.J.) has been seen as the leading case.
The Respondent relied on Yelle v. Scorobruh, 2016 ONSC 3300. Following a review of decisions applying rule 14(4.2), Justice Doyle summarized, at para. 50, the inquiry is as follows:
Whether the parties have canvassed earlier dates for a case conference with the family court counter and with the trial coordinator’s office. If so, the dates available should be included in the materials before the court;
Whether the parties have explored the local practices for dealing with family law matters and for obtaining earlier dates to address matters of immediate importance. For example, in Ottawa, a case conference can be heard on the same day as the First Court Date Clerk hearing date, and so this date must be taken into account in determining urgency.
Whether the parties have had negotiations in an attempt to reach an interim without prejudice agreement;
Whether the best interests of the child are at stake, including whether there is an abduction issue or other safety concern;
Urgency must be established in accordance with the jurisprudence, which includes abduction, threats of harm, and dire financial circumstances;
Is there hardship? In considering whether there is hardship, the Court will consider whether a party will be severely prejudiced or suffer irreparable or non-compensable harm; and/or
If there are other pressing issues, such as domestic violence, mental health issues, and/or substance issues, criminal activity, or serious anger management issues, this may bring the matter out of the normal procedure, as it may require immediate attention by the court.
The Respondent submitted that the Applicant’s evidence of the earliest available date on Calendly is not sufficient to meet the first criterion set out by Justice Doyle. The Respondent says that the Applicant should have called or emailed the Ottawa courthouse to see if an earlier date is available. I note that Justice Doyle wrote this decision before Calendly was used in our courts.
Our system cannot handle everyone emailing and calling the court for earlier dates. Evidence of the earliest available date of Calendly is appropriate evidence.
Similarly, the original Rosen approach emerged in a different court environment: mostly paper filings, slower communication, fewer virtual appearances, and a strong institutional push to stop parties from weaponizing motions before conferences. Courts still repeatedly reaffirm Rosen today. But modern realities expose some limitations.
The core principles of Rosen remain sound:
a. Urgent motions should be exceptional.
b. Parties should attempt resolution first.
c. Courts should discourage “litigation by ambush”.
Those principles are still relevant, applicable and important.
The court must continue to evolve in how we define and assess “urgency.” Rosen was built around obvious emergencies: abduction, physical danger, threats of harm, and dire financial circumstances.
But family law has expanded to consider family violence from the perspective of coercive control.
A modernized application of the Rosen test means considering serious and irreparable harm caused by the delays of the court in the context of coercive control.
Similarly, in coercive relationships, requiring attempted negotiation can expose vulnerable parties to manipulation, create delay, and reward obstructive litigants.
The law has evolved significantly on coercive control and family violence since Rosen in 2005. Where there are credible allegations of coercive control, power imbalance impairs meaningful negotiation, and delay itself risks harm, that must be considered as part of the analysis.
As in any family law context, a court must appreciate the evidence in light of the dynamics of the particular family, being especially alert to gender dynamics and the presence of family violence. See Dunmore v. Mehralian, 2025 SCC 20 at para. 73.
Where allegations of intimate partner violence are raised on the record, courts must consider them where they are relevant to the issues before the court. The jurisprudence further recognizes that intimate partner violence may involve patterns of conduct and may have consequences beyond individual incidents, including psychological and economic effects. These considerations may form part of the broader factual matrix relevant to the issues in dispute. See Malamas v. Wey, 2026 ONCA 133 at para. 27.
As the Supreme Court of Canada said last week, in order to properly characterize the wrongful conduct, intimate partner violence, best understood, is not confined to conduct that inflicts physical or psychological injury, but includes all abusive conduct by which one intimate partner coerces and controls the other, thus depriving them of their autonomy. See Ahluwalia v. Ahluwalia, 2026 SCC 16 at para. 120.
Rosen assumes parties should usually wait for conferences first. But in many jurisdictions, even “early” conferences can take months.
I am not saying Rosen is no longer an appropriate test. But the Rosen test, now 21 years old, needs to be considered in today’s context.
In the present case, with respect to the first step of the Rosen test, the earliest case conference dates are in the fall or winter of 2026. The next mortgage payment is due June 2, 2026, and the hydro may be cut off on May 24, 2026, if the payment is not settled by then. This matter cannot wait until a case conference in the regular course.
With respect to the second part of the Rosen test, in my view, the parties have tried to settle the issues. I have considered this factor in light of the allegations of power imbalances, family violence, and coercive control.
Based on the evidence before me, the test for an urgent motion has been met. The Applicant is in dire financial circumstances, and the Applicant and the children are at risk of harm because of the Respondent’s conduct regarding the family home. The Applicant and the children will be severely prejudiced or suffer irreparable or non-compensable harm. I do not agree that the issues have been outstanding since August 2025. The default on the mortgage, the issues with hydro, and the tax arrears are only recently known to the Applicant. The matrimonial home risks foreclosure if the parties do not address the sale of the home soon. The delay in selling the home may cause prejudice to the parties. The Applicant and the children are at risk of electricity being cut off, legal action by the tenants, and other risks to the health, safety, and well-being of the children.
It is also important to consider the allegations of abuse and power dynamics in considering the test for urgency. We cannot allow the delays in the court system, including prolonged dates to get a case conference or motion, to further exert control over the process. This consideration favours granting the request for an urgent motion. I am concerned that the Respondent may be using the delays, the house, and not paying bills to inflict harm and control over the Applicant. This needs to be considered through a proper record at a motion.
Having determined that this motion is urgent, it is appropriate to set timelines for the full and complete exchange of materials for the motion, as full and complete materials were not provided for the determination of urgency. The parties agreed that the following timelines shall apply:
a. The Applicant shall serve and file any materials being relied upon for the motion by May 29, 2026.
b. The Respondent shall serve and file any materials being relied upon for the motion by June 5, 2026.
c. The Applicant’s reply materials, if any, shall be served and filed by June 10, 2026.
d. The parties shall serve and file their factum by June 12, 2026.
e. The parties shall contact the trial coordinator to schedule the hearing of this motion for 2 hours, to be heard as soon as possible after June 15, 2026.
Subject to the court’s availability, the parties may also request an urgent case conference from the trial coordinator to deal with the logistics of the sale of the home.
The parties may request an order directing a reference to an Associate Judge regarding aspects of the sale of the home, including the process of the sale of the home and the division of the proceeds of the sale of the home.
Associate Justice Kamal
DATE: May 20, 2026