“Pursuant to section 12 of the Family Law Act, R.S.O. 1990, c.F.3, (or “the FLA”), if the court considers it necessary for the protection of the other spouse’s interests under Part I of that Act, dealing with family property, the court may make an interim or final order:
a. restraining the depletion of a spouse’s property; and
b. for the possession, delivering up, safekeeping and preservation of the property.
Pursuant to section 40 of the FLA, a court may, on application, make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under Part III of the Act, dealing with support obligations.
In addition to the evidence filed by the parties, counsel referred me to numerous authorities wherein our courts have addressed the manner in which sections 12 and 40 of the FLA should be applied. While I have read those cases, I think it unnecessary to review them in detail here. For present purposes, I note that general principles suggested by those authorities include the following:
a. The object of sections 12 and 40 of the FLA is the protection of a spouse’s interests under the FLA by helping to ensure that there will be assets available to satisfy the entitlements of a spouse who is successful in obtaining relief under the Act. Relevant to that exercise is an assessment of the risk that assets in existence prior to trial will be dissipated: See, for example: Bronfman v. Bronfman, 2000 CanLII 22710 (ON SC), [2000] O.J. No. 4591 (S.C.J.), at paragraph 29, and Bandyopadhyay v. Chakraborty, 2019 ONSC 802, at paragraph 44.
b. Drawing analogies to principles applied when considering to grant interim or interlocutory injunctions, but without intending to lay down explicit and/or rigid formula or guidelines for the granting of such discretionary relief, courts applying sections 12 and 40 of the FLA frequently have regard to the following factors:
i. the relative strength of a claimant’s case;
ii. the balance of convenience or inconvenience; and
iii. the potential for irreparable harm: See Bronfman v. Bronfman, supra, at paragraphs 26-28, Both v. Both, 2008 CanLII 15219 (ON.SC), at paragraph 16; and Bandyopadhyay v. Chakraborty, 2019 ONSC 802, at paragraph 43.
c. The court accordingly will consider how likely it is that the claimant will be entitled to an equalization payment and/or support, as well as the effect the granting or not granting of such orders will have on the parties: See Bronfman v. Bronfman, supra, at paragraph 29, and Bandyopadhyay v. Chakraborty, supra, at paragraph 44.
d. Preservation and restraining orders generally should be restricted to specific assets, (as opposed to an all-encompassing order binding all of a party’s property in a general manner), and a claimant seeking such an order should show, on a prima faciebasis, that he or she is likely to receive an equalization payment or support equal to the value of the specific assets: See Lasch v. Lasch, 1988 CanLII 4581 (ON SC), [1988] O.J. No. 488 (H.C.J.), at paragraphs 16-17, cited in Barber v. McGee, [2016] O.J. No. 7140 (C.A.), at paragraph 11; and Bandyopadhyay v. Chakraborty, supra, at paragraph 42.
e. Restraining orders granted pursuant to section 40 of the FLA usually are made when there is evidence that the party obliged to pay support is not complying with a support order or there is other evidence of blameworthy conduct. The recipient spouse cannot rely on bare allegations or assumed beliefs; i.e., there must be something more than an “unsupported concern: See Keyes v. Keyes, [2015] O.J. No. 1303 (S.C.J.), at paragraph 76.”