We have blogged in the past about the approach courts have been taking during COVID-19 to determine if a family law matter is urgent enough to be hold while the courts were largely closed. Most of our blogs on this topic dealt with the safety or health of children. That said, financial issues can also be cause for the courts to hear a matter, as was the case with a recent decision from the Ontario Superior Court of Justice.

Some background info

The parties were married in the summer of 2009. They had two children while married. The wife was the primary caregiver throughout the marriage, but now works as a financial administrator, earning about $67,000 per year. The children remained primarily in her care (without a formal order) following their separation.

The husband is now self-employed, but worked in a senior position at a bank until 2017, earning between $700,000 and $900,000 per year in that role. He took long-term disability leave in 2017, leading to his attempts to start his own business.

The couple own two properties, including a house worth about $2,000,000 and a cottage worth about $800,000. The wife stated that she has about $204,000 in RRSPs and TFSAs, but that amount had decreased by about $30,000 in the weeks leading up to the hearing.

The line of credit

The wife stated that she went to her bank on February 20, 2020, where she was informed that the parties’ line of credit had been drained by the husband to the tune of $775,000, which had been registered against the home. When she asked the husband about it, he admitted that he had taken it out and put it in a “safe place.” The “safe place” ended up being a personal bank account owned by the husband.

The husband later said he took the money out of the line of credit because he was suspicious the wife was having an affair. The wife began to worry about the husband’s mental health and moved with the children to the home of her parents on March 4, 2020. She stated she was worried that the husband was following her and had installed spyware on her phone.

Is the matter urgent?

After reviewing case law, including decisions that were issued during the COVID-19 pandemic, the court stated that the following factors are necessary in order to meet the urgency test during the pandemic:

  1. The concern must be immediate; that is one that cannot await resolution at a later date;
  2. The concern must be serious in the sense that it significantly affects the health or  safety or economic well-being of parties and/or their children;
  3. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical;
  4. It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency.

The court determined that the financial situation the family was in constituted urgency, highlighting the alleged erratic personal and financial behvaiour by the husband as well as his unliteral conduct. The court also found there was a significant risk that the money would not be returned without an order, and that it would leave the wife without access to their home, which is their most valuable asset.

The court ordered that the husband had 24 hours to return the money to their line of credit (plus interest). The court also suggested that the husband retain legal counsel in order to continue working through the parties’ issues.

Separations can be uncertain and emotional. Your best plan through this transition is to have an experienced family lawyer on your side to provide guidance and assistance, and to protect your legal rights. Contact NULaw online or at 416-481-5604 to book a consultation with our experienced divorce lawyer.

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