Family Law - Division of Family Property - Interim - Exclusive Possession of Family Home - Appeal
The appellant appealed the interim order of a Queen’s Bench chambers judge made in July 2020 that granted the respondent exclusive possession of the parties’ family home for the purpose of listing it for sale. This order amended one made in March 2020 in response to the same application by the respondent wherein a chambers judge had given the appellant exclusive possession of the home subject to the condition that he pay all mortgage and insurance payments, failing which the respondent was given leave to renew her application. When the appellant failed to fulfil the condition, the respondent renewed her application. The appellant filed an affidavit explaining that he had not made the payments because his business had been severely affected by COVID-19, but prior to the application he had brought all payments up to date. The chambers judge delivered his oral decision in favour of the respondent because the appellant had breached the condition of the previous order, although he took notice of the appellant’s explanation. The judge ordered the appellant to vacate the home but gave him some time to make alternate living arrangements. The appellant argued that the chambers judge erred by: 1) failing to consider the impact of the pandemic on his business and his ability to make the payments; 2) failing to consider that the payments were current as at the date of the application; and 3) by making an interim disposition of the home in the circumstances where it was the only asset of value in the family property.
HELD: The appeal was allowed and the order set aside. The court found with respect to the first two grounds that they had no merit. The chambers judge took judicial notice of the effect of the pandemic on the appellant’s business and he stated that he had read the appellant’s affidavit so was aware of the evidence that the payments were up-to-date. Regarding the third ground, the judge’s decision was discretionary and thus reviewed on the deferential standard. As well, his order was an interim one because it was part of the larger property family property proceedings and it was not the practice of the court to entertain appeals of same. In the circumstances, however, it made an exception and found that the judge exercised his discretion improperly. He failed to consider any of the numerous criteria required to make an order granting interim distribution of family property and his decision had the effect of a final order in that the respondent could sell the home. The disposition of such a major asset was usually left to trial. The parties were encouraged to proceed to pre-trial conference. It chastised the appellant for making a practice of bringing payments up-to-date immediately prior to court applications and warned him not to repeat such conduct. The respondent was also admonished for bringing a chambers application to the Court of Appeal to deal with and give direction concerning some of the same issues before the court in this appeal. The application was improper and an abuse of the court’s process.