In this case, the wife brought a motion for relief prior to a case conference. She sought leave to bring the motion on an urgent basis prior to that case conference, and an order for the immediate partition and sale of the matrimonial home. The wife argued that she should be granted this relief because her matter was urgent.
Ultimately, the judge found that there was no genuine claim to immediate urgency or hardship. The wife offered an alternative argument as to why her motion should be heard before a case conference. She argued that Rule 14(4.1) permits relief when it is "in the interest of justice other than urgency or hardship."
Rule 14(4) states that no motions may be brought before the parties attend a conference dealing with the substantive issues. However, Rule 14(4) also states that Rule 14 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.
Interestingly, the husband had already included in his pleadings that he was seeking the immediate sale of the matrimonial home. The wife, therefore, put forth the argument that there is little point in delaying the sale since both parties had the same position on the subject, rendering the sale of the home inevitable.
Justice Kurz reviewed several cases dealing with urgency, after which he concluded that in the present matter, there was no urgency. He then explored when it is in the "interests of justice" for a non-urgent motion to be heard. Nonetheless, the order was granted based on the following six reasons, as cited by Justice Kurz:
- The wife has a prima facie right to partition and sale of the home.
- The husband's Answer contains an admission of his motivations regarding partition and sale of the home.
- The husband has been unable to prove that he will suffer a legally viable form of prejudice should partition and sale be Ordered.
- The wife would be prejudiced by a delay in the sale of the Home.
- R.14(16)(c) exempts summary judgment motions from the operation of R. 14(4).
- There is no point in arguing this motion again. The Court had jurisdiction not withstanding Rule 14(4) to allow the motion to proceed. Thus, Justice Kurz allowed it to proceed and granted the partition and sale of the matrimonial home.
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