For the layperson who may not spend their time dealing with the judicial system and attending court, it might seem that “court is court” and that people are free to approach various courts for their litigation needs. Much like in a grocery store, they may hope that if they find themselves in the wrong aisle or courtroom, they will be re-directed to a more appropriate aisle or branch of the court. But the courts do not function like grocery stores, which is something a party to a divorce found out after he tried to have a matter related to the sale of the matrimonial home resolved in civil court rather than family court.
Family home is just one of a number of issues
The mother and father involved in the issue were not married, but lived together for eight years and had one child, who was seven-years-old at the time the trial took place. They separated in 2019 but continued to live together in the matrimonial home until January 2021, at which point the home was sold. At the time of the trial, the father was paying $870 per month in child support.
The parties had a few items they had to work through, including access time for the father as well as how to divide the proceeds from the sale of the home.
The mother provided a $159,850 down payment for the home. The father was seeking an unequal division of the proceeds from the sale of the home, with his argument being that he contributed more significantly to the mortgage and interest payments on the home.
Father attempts to litigate issue of proceeds from the home in civil court
The father attempted to sever the matter from the other issues he and the mother are in by initiating proceedings for the sale of the home in civil court. The mother and the judge thought that family court was a more appropriate venue.
The court told the father’s lawyers that civil court was not an appropriate venue. However, his lawyers objected, stating that the court did not have the jurisdiction to transfer the matter to family court or a settlement conference.
The court stated that in civil case conferences and pre-trials, judges often make procedural orders to ensure the matter will proceed appropriately. In this case, the province’s Rules of Civil Procedure state that a judge of a case conference may direct a matter to another court. The court was critical of the father’s attempt to sever the house matter from the parties’ other issues, stating, “ The (father) seeks to jump the queue and split this family case between two divisions in the Superior Court in Toronto. This is not acceptable.”
The court offered to conduct a further conference with the parties (the father was not in attendance). However, the court did suggest that it would be better for the parties to deal with a settlement conference on all issues.
If you and your spouse have substantial assets or debt, dividing your property and determining who is responsible for debts without legal representation is risky. At Howie Johnson Barristers & Solicitors we recommend involving a third party in order to ensure that your spouse is truthful and forthcoming regarding financial disclosure. To speak with an experienced Windsor lawyer about property division, call 519.973.1500, get started now or contact us online. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants and other professionals.