“Section 40 of the Family Law Act allows for an order restraining the depletion of a spouse’s property that would impair or defeat a support claim. I made an order for interim spousal support with ancillary relief. There is nothing in the evidence on this motion to indicate that the respondent has either refused or is unable to comply with that order. I therefore conclude that s. 40 of the Act does not apply to allow for a non-depletion order in these circumstances as there is no evidence that depletion of this property would impair or defeat the applicant’s claim for spousal support. If the applicant seeks the preservation of the property in respect of his claims in trust, joint venture and unjust enrichment, in my view, s. 40 does not apply as it is not connected to a support obligation. Further, an order under s. 40 is usually made when there is evidence that the payor is not complying with a support order or there is evidence of blameworthy conduct: Keyes v. Keyes, 2015 ONSC 1660 (CanLII) at paras. 74-76. I acknowledge that the parties have each raised questions about the other’s conduct in their written submissions; however, in my view, there is no proper evidence of either non-compliance or blameworthy conduct to warrant the order under this section.
The Family Law Rules do not provide for an interim preservation order. Section 1(7) of the Family Law Rules provides that if these rules do not cover a matter adequately, the court may give directions and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers appropriate, by reference to the Rules of Civil Procedure. However, the Court of Appeal has held that resort to r. 1(7) will be a rare instance as the Family Law Rules reflect the fact that family litigation is different from civil litigation: Frick v. Frick, 2016 ONCA 799 (CanLII) at paras. 11-12. That said, the nature of the applicant’s trust, unjust enrichment and joint venture claims are such that it could be said that this is one of those rare instances where resort to the civil rules is appropriate.
Although the applicant referred to r. 45 of the Rules of Civil Procedure, in my view the appropriate rule under which to seek this relief is r. 40, pertaining to a Mareva injunction and s. 101(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 as amended. As explained by Kristjanson J. in Laliberte v. Monteith, 2018 ONSC 7032 (CanLII) at para. 31 a Mareva injunction is intended to prevent the dissipation of assets pending the determination of a civil matter.
In Karpacheva v. Karpacheva, 2018 ONSC 4563 (CanLII) at para. 29 Trimble J. noted that generally, Courts should rarely issue orders freezing assets before judgment against the owner of those assets. They are granted where the claimant has a reasonable and justiciable cause of action and there is serious risk the assets will be dissipated to avoid judgment and execution. At paragraph 33, Trimble J. set out the criteria the moving party must satisfy to impose a Mareva injunction. These are guidelines for the court to consider as opposed to rigid criteria:
a. establish a strong prima facie case;
b. make full and fair disclosure of all material matters within his or her knowledge;
c. give particulars of the claim against the defendant, stating the grounds of the claim, the amount thereof, and the points that could be fairly made against it by the defendant;
d. establish that there is a serious risk of the assets being removed out of the jurisdiction, or disposed of within the jurisdiction, or otherwise dealt with before judgment; and
e. give an undertaking as to damages.”