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Ontario’s Family Court recently dealt with the interesting issue of whether an order obligating a separated couple to sell their matrimonial home should be set aside because of a variety of hardships claimed by the wife, including ADHD.
The parties separated in June 2016. They have two school-aged children who continue to live with their mother in the $1.7 million matrimonial home.
In March 2017 the husband filed a motion to compel the sale of the matrimonial home. Since their separation, the parties had been having trouble paying their $610,000 mortgage. Money that should have been going to support the family was being absorbed by the home. At first, the wife appeared at two subsequent hearing dates without counsel and requested an adjournment. The court eventually granted the husband’s request and ordered that the home be sold before the end of the school year. Until the sale was carried out, the husband was to continue paying expenses on the home.
The Wife’s Motion to Set Aside the Sale
Following the court’s order, the wife brought a motion to have the sale set aside, seeking to apply Rule 25(19). The Rule allows a court to change an order where there has been fraud, mistake, or lack of notice. The wife’s affidavit claimed that she had suffered a litigation disadvantage because:
- She had ADHD and learning disabilities;
- She is a recent immigrant with limited English skills;
- She had been largely self-represented, or had gaps in her representation;
- She strongly believes the husband had taken advantage of her, and had abused the court process.
The wife also submitted a 105-paragraph affidavit, containing 32 exhibits in which she raised additional issues of concern to her, including:
- Her experience of the marriage;
- Negotiations after separation;
- How she perceived her interests in the litigation;
- Projected patterns of behavior;
- The conduct of counsel; and
- The scheduling of case conferences.
The court noted that none of these are grounds for a Rule 25(19) analysis.
The wife also argued that there had been an act of fraud as she believed that her husband had not fully disclosed his income, something she had previously raised during the hearing of the original motion. The court also rejected this argument, noting that:
Setting aside an order under Rule 25(19) (a) carries a high threshold. Fraud within Rule 25(19)(a) does not have a special meaning outside the common law. A moving party must clearly prove that the other party knowingly or recklessly made a false statement with knowledge of the falsehood, and did so with wrongful intent.
The wife’s motion was ultimately dismissed.
At Gelman & Associates, our experienced family law lawyers provide clients with the information they require to make educated decisions about the division of property upon separation or divorce.
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