“Longstanding case law decided under the Fraudulent Conveyances Acthas addressed the issue of who is a “creditor or other” for the purpose of s. 2. In Hopkinson v. Westerman(1919), 45 O.L.R. 208 at p. 211, 48 D.L.R. 597 (C.A.), the court held that “others” extended to persons who, though not judgment creditors, had pending actions in which they were sure to recover damages. In that case, the person who transferred the land was a defendant in a tort action. In Bell v. Williamson, 1945 CanLII 95 (ON CA), [1945] O.R. 844, [1946] 1 D.L.R. 372 (C.A.), the court similarly held that the claimant need not be a judgment creditor at the time of the conveyance, but a person may fall within the words “or others” even if the person has, at the time of the impugned transaction, only a claim for unliquidated damages in contract or in tort. Robertson C.J.O. stated at p. 848 O.R.:
I do not doubt for a moment that a transaction may be null and void within s. 2of The Fraudulent Conveyances Act, although the plaintiff who brings the action attacking it may, at the time of the transaction, and even when action is brought attacking it, have had nothing more than a claim for unliquidated damages in contract or in tort. The effect of the words “or others” following the word “creditors” is to give to such persons a right of action to have a transaction set aside as null and void as against them, if made with the required intent. . . .
This interpretation of the phrase “creditors or others” has been applied many times including in the family law context: See for example: Shephard v. Shephard(1925), 56 O.L.R. 556, [1925] 2 D.L.R. 897 (C.A.); Ferguson v. Lastewka, 1946 CanLII 96 (ON SC), [1946] O.R. 577, [1946] 4 D.L.R. 531 (H.C.J.); Oliver v. McLaughlin(1893), 24 O.R. 41 (Q.B.); Murdoch v. Murdoch(1976), 1976 CanLII 260 (AB QB), 26 R.F.L. 1, 1 A.R. 378 (T.D.);Chan v. Chan, [1993] B.C.J. No. 442 (S.C.); and Lepore v. Lepore, [1998] O.J. No. 733 (Dist. Ct.), affd by Ontario Court of Appeal (October 22, 1990).
Therefore, in order for a spouse to qualify as a person who is intended to be protected from conveyances of property made with intent to defeat her interest, she must have had an existing claim against her husband at the time of the impugned conveyances, that is a right which she could have asserted in an action.”