“The Applicant seeks a preservation order under section 12 of the Family Law Act to make the Respondent solely responsible for the St Germain mortgages for a period of time.
The Applicant correctly notes that this Court’s jurisdiction under section 12 extends to mandating a spouse to make ongoing mortgage payments: Proc v. Proc 1992 CanLII 13991 (ON SC).
As a species of interim or interlocutory relief, a preservation order is subject to the following considerations:
a. the relative strength of the moving party’s case;
b. the balance of convenience (or inconvenience); and
c. irreparable harm.
Bronfman v Bronfman, 2000 CanLII 22710 (ON SC) at para 28.
Bronfman, supra, further states the following propositions:
a. Section 12 is intended to “protect the spouse’s interests under theFamily Law Act, so that if a spouse is successful in obtaining relief under the Act, there are assets available to satisfy that relief”;
b. When considering “the relative strength of the plaintiff’s case” and the “balance of convenience (or inconvenience)” the court should consider the likelihood the moving party will receive an equalization payment and, if there is, any risk that the property will be dissipated prior to trial; and
c. Determining the relative weight of the moving party’s case “is a delicate matter which will vary depending upon the context and the circumstances”, as well as “the degree of predictability which the factual and legal issues allow”.”