Case Comment: Abu Kibash v Gamal, 2026 ONSC 2969
Abu Kibash v Gamal, 2026 ONSC 2969, examines the circumstances that will support the court in hearing a motion on an urgent basis. The wife/Applicant brought an urgent motion regarding a number of financial, property, and related matters, and the husband/Respondent opposed it, arguing that there was no urgency to these issues.
Justice Kamal examined the issues the wife sought to have addressed, the relevance of family violence, and the existing case law before concluding that the circumstances warranted an urgent motion.
As you know, typically, motions cannot be brought in a family court proceeding until after there has been a case conference, which had not happened in this instance.
The Applicant raised several reasons to support her claim that the motion was urgent:
- She had been financially dependent on the Respondent throughout the relationship because of cultural and religious expectations imposed on her as a Muslim Arab woman that kept her from working outside the home
- The Respondent was highly educated and employed as an engineer, but had paid no child or spousal support or expenses towards the house since leaving the marriage
- The Respondent had been highly abusive to the Applicant, physically, sexually, financially, psychologically, and verbally
- The bank had advised her that if one more mortgage payment was missed, it would begin enforcement proceedings, and she was in significant arrears on other bills relating to the home
- The Applicant had begun proceedings to sell the matrimonial home, but the Respondent was resisting the process
All of these factors together left the Applicant in dire financial circumstances, especially because no case conference date was available for four months.
The Respondent took the position that the matter had been ongoing for some time and that he was suffering from financial difficulties. He also claimed that he had never interfered with the Applicant working and, in fact, had encouraged her to work.
The Family Law Rules sections 14(4) and 14(4.2) prohibit the bringing of a motion before a case conference has been held, unless the court is of the opinion that there is a situation of urgency or hardship. It is up to the person who wants to bring an urgent motion before the case conference to establish that there is a situation of urgency or hardship.
The leading case on this issue, from 2005, Rosen v. Rosen, 2005 CanLII 480 (ON SC), established the following principles:
- Urgent motions should be exceptional
- Parties should attempt resolution first
- Courts should discourage ‘litigation by ambush’
In his thoughtful and clearly written decision, Justice Kamal recognized the principles set out in Rosen, then noted that “modern realities expose some limitations.” He found that courts must evolve in defining and assessing urgency and that family law has expanded in its understanding of family violence, in particular, coercive control:
“Where there are credible allegations of coercive control, power imbalance impairs meaningful negotiation and delay itself risks harm that must be considered as part of the analysis. . . . [A] court must appreciate the evidence in light of the dynamics of the particular family, being especially alert to gender dynamics and the presence of family violence.”
Justice Kamal referenced the Supreme Court of Canada Ahluwalia v. Ahluwalia, 2026 SCC 16 (CanLII) decision in noting:
“In order to properly characterize the wrongful conduct, intimate partner violence, best understood, is not confined to conduct that inflicts physical or psychological injury but includes all abusive conduct by which one intimate partner coerces and controls the other, thus depriving them of their autonomy.”
With respect to the facts of this case, Justice Kamal found that it could not wait until the next available case conference date, given the likelihood that the bank would begin enforcement proceedings and that hydro would cut off power due to non-payment. Given the allegations of family violence, including coercive control, he found that the parties had satisfied the requirement that they attempt to settle matters on their own. His conclusion was that the Applicant met the test for an urgent motion:
“The Applicant is in dire financial circumstances, and the Applicant and the children are at risk of harm because of the Respondent’s conduct regarding the matrimonial home. The Applicant and the children will be severely prejudiced or suffer irreparable or non-compensable harm. . .”
“It is also important to consider the allegations of abuse and power dynamics in considering the test for urgency . . . I am concerned that the Respondent may be using the delays, the house, and not paying bills to inflict harm and control over the Applicant.”