Month: March 2022

“The court is authorized to make a restraining order pursuant to s. 35(1) of the [Children’s Law Reform] Act:

Restraining order

35 (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.  2009, c. 11, s. 15.

The applicant relies on McCall v. Res, 2013 ONCJ 25, where there is a helpful discussion as to the necessary evidence to justify a restraining order. In paras. 29-31, the court states (with any emphasis being in the original):

29      Before the court can grant a restraining order, it must be satisfied that there are “reasonable grounds [for the mother] to fear for her own safety or for the safety of [her child]”. In Fuda v. Fuda, 2011 ONSC 154 (CanLII), 2011 CarswellOnt 146 (Ont. S.C.J.), Justice McDermot had this to say, at paragraph 31 [my emphasis]:

It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent’s actions or words. A court must be able to connect or associate a respondent’s actions or words with an applicant’s fears.

30  In Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.J.), Justice Ruth Mesbur made the following comments, at paragraphs 7 and 9 [my emphasis]:

More importantly, Horkins J made specific findings of fact that the applicant had physically and verbally abused the respondent, with psychological abuse being more frequent. It is telling that today, when the respondent raises the issues of her ongoing psychological fear of the applicant, the applicant simply suggests she should get counselling. [In this case] I accept that the respondent has reasonable grounds to fear for her own safety and the safety of the child who is in her custody. This fear extends to both their physical safety and psychological safety.

31      What I take from these cases is:

• • • • • • The fear must be reasonable
          • The fear may be entirely subjective so long as it is legitimate
          • The fear may be equally for psychological safety, as well as for physical safety

An underlying principle is that a person’s fear for his or her safety or the safety of a child, must be related to a respondent’s actions or words.”

      Stephens v. Sommerville, 2021 ONSC 1958 (CanLII) at 37-39

“The Applicant has provided clinical notes and records from CAMH on which she relies to demonstrate her fragile mental state. In paragraph 17 of her affidavit, she said that she was “not in a proper mental state during the entire course of our relationship”.

This issue engages the legal concept of “capacity to marry”. In Calvert v Calvert 1997 CanLII 12096 (ON SC), [1997] 32 O.R. (3d) 281, (Ont. Gen. Div.) (Calvert), the court was focused on the issue of capacity to divorce. In that context, the court referred to Re Park Estate, [1953] 2 All ER. 1411 (Park). In both of those cases, the court also referred to capacity to marry. As those courts indicated, a person’s right of self-determination is an important philosophical and legal principle. Having reached the age of majority, it is presumed that a person has capacity. The contract of marriage has been described as “the essence of simplicity, not requiring a high degree of intelligence to comprehend”: Park at p. 1427. Courts are slow to take away a person’s right to decide, which is reflected in the low threshold the courts have set for the determination of capacity. To adapt the reasoning in Calvert, “the real question is whether Ms. Ives understood what she was doing on December 15, 2018.”

The Respondent and his cousin do not accept that the Applicant lacked capacity to marry.

I agree with the Respondent’s submissions. The fact that the Applicant was under treatment at CAMH that included the medications she has identified does not mean that she lacked capacity to marry. The evidence on this motion includes copies of the letters that the Applicant and her mother wrote, after the marriage, to support the sponsorship application. I will refer to that issue again below. However, for purposes of this ground for the annulment, the letters from the Applicant and her mother indicate that the Applicant was well aware of the proposal to marry, the arrangements for the wedding, and that, at the time of the wedding, she was happy to be married. The objective evidence of the photographs of the wedding and all of the other evidence indicate that the Applicant had capacity to marry.

In this case, the Applicant is challenging her own capacity. The burden is on her to provide sufficient evidence for the court to set aside the presumption of capacity. In the fall of 2018, she was under medical care, including significant medications. But the evidence meets the low threshold of proving capacity, namely that, on December 15, 2018, she understood that she was marrying the Respondent.”

         Ives v. Chubinidze, 2021 ONSC 1953 (CanLII) at 18-22

“The Applicant has filed case law indicating instances where access was restricted because of COVID protocol breaches.  Those cases are largely distinguishable.  In J.F. v. L.K., supra, the access parent had left out of his affidavit the protocols that she complied with and in light of the fact that there was evidence that she was in the sex trade, Charney J. suspended contact.  In the present case, the Respondent provided details of his compliance with COVID protocols and does not work in a risky profession.

In Blythe v Blythe, 2020 ONSC 2871, a decision made early in the COVID-19 crisis, the father’s employment as a bus driver were grounds for suspending access.  Because we now know more about the disease and mitigation measures, the latter decision might have been decided differently today:  see S.D.B. v. R.B.B., 2020 CarswellOnt 5278 (S.C.J.).

In A.T. v. V.S., 2020 ONSC 4198, the court found that the father was “not prepared to follow COVID-19 protocols in the future” (emphasis mine).  In the present case, Ms. Carey alleged previous breaches by the father of COVID protocols.  The order of January 5 was meant to address those earlier breaches.  The father in this case has now said that he will continue to obey COVID protocols and says he has done so since the date of the order. Unlike A.T., the consent order in this case was entered into to address future breaches (and it is also clear that Ms. Carey entered into the consent without any belief that the Respondent would comply with it).

In Abbas v. Downey, 2020 ONCJ 283, there was specific evidence of poor judgment by the father.  “Out of an abundance of caution”, O’Connell J. restricted access to virtual and telephone access only where the child was immunocompromised.

Importantly in that case, O’Connell J. said that the party seeking to restrict access should not use self-help, and should present evidence as follows:

There is a presumption that all orders should be respected and complied with. The onus, therefore, is on the party seeking to restrict access to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with COVID 19 protocols and expose the child to risk. See: Tessier v. Rick, [2020] O.J. No. 2662.”

          Carey v. Bryan, 2021 ONSC 1923 (CanLII) at 28-32

“Costs orders are governed by Rule 24 of the Family Law Rules. Under Rule 24(1) there is a presumption that the successful party is entitled to costs. Subrule 24(11) sets out the factors the court must consider when fixing the amount of a costs order.

The courts have a broad discretion to award costs.  The general discretion of the courts regarding costs is contained in the Courts of Justice Act, R.S.O. 1990, c. C. 43, as amended, s. 131(1), which sets out three specific principles:

a)       the costs of a case are in the discretion of the court;

b)       the court may determine by whom costs shall be paid; and,

c)       the court may determine to what extent the costs shall be paid.

Modern costs rules are designed to foster three fundamental purposes: Fong v. Chan, 46 O.R. (3d) 330, 181 D.L.R. (4^th) 614, 1999 CanLII 2052, 1999 CarswellOnt 3955 (Ont. C.A.), para. 24:

a)      to indemnify successful litigants for the cost of litigation;

b)      to encourage settlement; and,

c)      to discourage and sanction inappropriate behaviour by litigants.

Rule 2(2) of the Family Law Rules adds a fourth fundamental purpose for costs: to ensure that the primary objective of the rules is met, that cases are dealt with justly. This provision needs to be read in conjunction with Rule 24 of the rules.

Justice Pazaratz in Chomos v Hamilton 2016 ONSC 6232, set out the governing principles for costs:

1. 1. 1. 1. 8.    Rules 18 and 24 of the Family Law Rulesgovern the determination of both liability for costs and the amount of costs.  While these rules have not completely eliminated judicial discretion, the rules nonetheless circumscribe the broad discretion previously granted to the courts in determining costs. C.A.M. v. D.M. 2003 CanLII 18880 (ON CA), 2003 CanLII 18880 (Ont. C.A.); Andrews v. Andrews 1980 CanLII 3619 (ON CA), [1980] O.J. No. 1503 (Ont. C.A.); Wilson v. Kovalev 2016 ONSC (CanLII) (SCJ);
            9.   Rules 18 and 24, and most of the case law focus on two words:  “Success” and “Reasonableness”.  The latter entails two components:

a.   Reasonableness of behaviour by each party;

b.   Reasonableness of the amount of costs to be awarded;

10.  In Serra v. Serra, 2009 ONCA 395 (CanLII) the Ontario Court of Appeal confirmed that costs rules are designed to foster three important principles:

a.   To partially indemnify successful litigants for the cost of litigation.

b.   To encourage settlement; and,

c.   To discourage and sanction inappropriate behaviour by litigants;

11.   The assessment of costs is not a mechanical exercise.  It’s not just a question of adding up lawyer’s dockets: Boucher et al v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579 (ON CA), 2004 CanLII 14579; 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v. Wolfe, 2010 ONSC 1044 (CanLII), 2010 ONSC 1044 (SCJ); and,

12.   The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Selznick v Selznick, 2013 ONCA 35 (CanLII), 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis, 2005 CanLII 36447(ON SC), 2005 CarswellOnt 4956 (SCJ); Serra (supra); Murray v. Murray, (2005) 2005 CanLII 46626 (ON CA), 2005 CanLII 46626 (Ont. C.A.); Guertin v Guertin, 2015 ONSC 5498 (CanLII), 2015 ONSC 5498 (SCJ).

The traditional purpose of an award of costs was to indemnify the successful party in respect of the expenses sustained.  For some time, however, courts have recognized that indemnity to the successful party is not the sole purpose, and in some cases not even the primary purpose, of a costs award.  The principle of indemnification, while paramount, is not the only consideration when the court is called on to make an order of costs; indeed, the principle has been called “outdated” since other functions may be served by a costs order, for example to encourage settlement, to prevent frivolous or vexatious litigation, and to discourage unnecessary steps.  This change in the common law was an incremental one when viewed in the larger context of the trend towards awarding costs to encourage or deter certain types of conduct, and not merely to indemnify the successful litigant.

The traditional approach to costs can also be viewed as being animated by the broad concern to ensure that the justice system works fairly and efficiently.  Because costs awards transfer some of the winner’s litigation expenses to the loser, rather than leaving each party’s expenses where they fall, they act as a disincentive to those who might be tempted to harass others with meritless claims.  In addition, because they offset to some extent the outlays incurred by the winner, they make the legal system more accessible to litigants who seek to vindicate a legally sound position.  These effects of the traditional rules can be connected to the court’s concern with overseeing its own process and ensuring that litigation is conducted in an efficient and just manner.  In this sense it is a natural evolution in the law to recognize the related policy objectives that are served by the modern approach to costs.

Modern costs rules accomplish various purposes in addition to the traditional objective of indemnification.  An order as to costs may be designed to penalize a party who has refused a reasonable settlement offer.  Costs can also be used to sanction behaviour that increases the duration and expense of litigation, or is otherwise unreasonable or vexatious.  In short, it has become a routine matter for courts to employ the power to order costs as a tool in the furtherance of the efficient and orderly administration of justice.

When awarded on a full recovery scale, costs can serve to express the court’s disapproval of unreasonable conduct during the litigation.”

            A.W. v. S.W., 2018 ONCJ 177 (CanLII) at 20-28

“When an order is made requiring a payor to pay table child support based on an imputed income, that, in itself, becomes controversial going forward.   Section 25 of the Child Support Guidelines requires a payor to produce annually, not more than once a year after the making of the order, disclosure referred to in s. 25 and in s. 21(1). As indicated below, I am modifying the disclosure he is required to provide to avoid disclosure becoming yet another area of conflict. As long as he remains self-employed, his documentation will continue to reflect a line 150 income that ought not to be the basis of establishing his table child support payment. I agree that Mr. S. must comply with s. 25 and s. 21(1) and provide disclosure.  However, the amount that Mr. S. is now ordered to pay for table child support will not change automatically dependent on his line 150 income because, so long as he is self-employed, his line 150 income may be below the minimum income and he would assert that he has no obligation to pay table amount of child support. That would not reflect his actual financial circumstances. While he will be required to disclose annually, the table child support amount will not change automatically each year. The amount ordered below will not be subject to change unless Ms. D. brings a motion to change final order that is granted. On that basis, Ms. D. will receive the annual disclosure but will decide whether it is worthwhile emotionally and financially to press for additional table amount of child support.”

         Y.M.S. v. M.D., 2021 ONSC 1710 (CanLII) at 338

“More relevant to the issue of whether the Defamatory Statements were made on an occasion of qualified privilege is s. 125 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). That section sets out the obligation of a person to report information to a society where there are reasonable grounds to suspect that a child has suffered various kinds of harm. Section 125(10) creates a form of statutory qualified privilege:

This section applies although the information reported may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this section unless the person acts maliciously or without reasonable grounds for the suspicion. [Emphasis added.]

This statutory qualified privilege attaches to statements made in a complaint to a society, as well as to statements made by a person to the society in the course of an investigation: W. (D.) v. White, 2001 CarswellOnt 5892 (S.C.), at paras. 85-92, aff’d (2004), 2004 CanLII 22543 (ON CA), 189 O.A.C. 256 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 486; Nadejda Ryabikhina v. Stanislav (Stan) Savranskiy, 2010 ONSC 3860, at paras. 24-25, aff’d 2011 ONCA 219, leave to appeal to S.C.C. refused, 35927 (July 24, 2014); Sullivan v. Draper-Sereda, [2006] O.J. No. 4671 (Small Claims).

…
In his discussion of the applicable legal principles, at para. 68 of the Second Reasons, the trial judge recognized that the defence of qualified privilege could be defeated by actual or express malice or if CC’s statements exceeded the limits of the applicable duty or interest: Korach v. Moore (1991), 1991 CanLII 7367 (ON CA), 1 O.R. (3d) 275 (C.A.), at pp. 278-80, leave to appeal refused, [1991] S.C.C.A. No. 30; Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at paras. 128 and 136. The limits of the privilege were explained by this court in RTC Engineering Consultants, at para. 18:

Not everything said or written on an occasion of qualified privilege is protected. As is evident from the term “qualified privilege” itself and from the previous discussion, the privilege is not absolute. It may be lost in one of two ways. First, it may be lost if the dominant motive for making the statement was malice. In this context malice means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness. Both dishonesty and a reckless disregard for the truth may amount to malice. Second, a privilege may be lost if the statement is not commensurate with the occasion, either because the statement is not germane and reasonably appropriate to the occasion or because the recipients of the statement have no interest in receiving it. Put differently, to maintain privilege a defendant must communicate appropriate information to appropriate people. [Emphasis added.]

In considering whether malice by the maker of the statement defeats qualified privilege, the primary consideration is the state of mind of the maker at the time the words were published: Brown, at ch. 16.2(2). The presence of an improper motive is the critical consideration. The privilege will be lost if it is shown that the statement was published for a collateral motive unrelated to the privilege’s purpose: Brown, at ch. 16.3(1). Accordingly, malice is essentially a question of good faith. The privileged occasion must be used for the purpose for which it is given; it must not be misused or abused by a defendant: Brown, at ch. 16.3(1).

In RTC Engineering Consultants, this court, at para. 18, identified some aspects of the factual inquiry when it stated that malice in the context of qualified privilege “means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness.””

         AA v. BB, 2021 ONCA 147 (CanLII) at 28-29, 33-35

“On March 1, 2021, important amendments to the Divorce Act (the Act) came into force.  These amendments are applicable in this case because s. 35.3 of the Act expressly states that the amendments to that legislation will apply to any case decided on or after March 1, 2021 (even if the case was started but not determined before March 1, 2021).  Section 35.3 says:

PROCEEDINGS COMMENCED BEFORE COMING INTO FORCE – A proceeding commenced under this Act before the day on which this section comes into force and not finally disposed of before that day shall be dealt with and disposed of in accordance with this Act as it reads as of that day.

Although the amendments were originally scheduled to take effect last year, it was delayed because of the COVID-19 pandemic. All of this came into force as of March 1, 2021 and therefore I must and shall use and apply that language in this decision.   The amendments changed and modernized the language in the Act in many ways to remove any reference to the terms like “custody” or “access” for children.  These terms were replaced with terminology focused on parent’s responsibilities for their children, with the goal of helping to reduce parental conflict.  The Act introduced some new terminology relating to “parenting orders”, “parenting time” and “decision-making responsibility”, and further added other terms and definitions including “family dispute resolution process”, “family justice services”, “family member” and “family violence”.   Similar changes were also made to provincial statutes like the Children’s Law Reform Act (CLRA), contained in the Moving Ontario Family Law Forward Act, 2020, (also coming into force on March 1, 2020).   In my view, these changes are very welcome to the family court and it is my hope they will do exactly what they were intended to do, which is to help reduce parental conflict (in the best interests of children).

Section 2 of the Divorce Act provides definitions for some of the new terminology. The definition of “custody” and “custody order” were repealed.  Now, instead of making a custody order, the courts will now make a “parenting order” pursuant to s. 16.1 (1) of the Act.  In the parenting orders, the court may, among other things: allocate parenting time and day-to-day decisions (in accordance with s. 16.2 of the Act; allocate decision making responsibility (in accordance with s. 16.3 of the Act); and requirements regarding communication between the persons that have been allocated parenting time.

Under the Act, a parenting order would be available to either or both spouses; or a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.  Parenting tim may be allocated by way of a schedule and unless the court orders otherwise, the parent who has been allocated parenting time has exclusive authority to make the day-to-day decisions affecting the child when the child in in their care.  This would include time when the child is not physically in the care of that person, such as when the child is at school or in daycare.  If there is a particular issue that would normally be a day-to-day decision, but it is of certain significance to a particular child, it could provide for any other matter that the court considers appropriate. The amendments preserved the principle that a child should spend as much time with each parent so long as it is consistent with the best interests of the child.  The “maximum contact principle” is now the “maximum parenting time” principle.  It is important to note that above all else, this principle is subject to the “primary consideration” that the court must consider a child’s physical, emotional and psychological safety, security and well-being.  This is especially significant in cases of family violence.  Lastly, none of the above creates a presumption of equal time because if the contact conflicts with the best interests of the child, the court may impose restrictions.”

         Pereira v. Ramos, 2021 ONSC 1737 (CanLII) at 10-13

“In Contino, where Bastarache J. also wrote for the majority, he considered various approaches to the interpretation and application of ss. 9(a) at paras. 40 – 44:

The first factor requires that the court take into account the financial situations of both parents (instead of the sole income of the spouse against whom the order is sought, as in s. 3). It is important to highlight the fact that the final and fully considered version of s. 9 does not include a conclusive formula to determine how the Table amounts are to be considered or accounted for.

The Court of Appeal, while it agreed that the use of a formula is not explicitly required in the section, concluded that the set-off approach in s. 8 could be a useful starting point to bring consistency and objectivity to the determination, especially in cases where there is limited information and the incomes of the parties are not widely divergent. I agree, but would caution against deciding these issues without proper information. I would particularly caution against a rigid application of the set-off which can entail, in the case of a variation order, a drastic change in support, dubbed the “cliff effect” by commentators (M. S. Melli and P. R. Brown, “The Economics of Shared Custody: Developing an EquiTable Formula for Dual Residence” (1994), 31 Houst. L. Rev. 543, at p. 565; Rogerson, at p. 74; Wensley, at p. 70), that may not be warranted when a close examination of the financial situation of the parents and standard of living in both households is considered. The value of the set-off is in finding a starting point for a reasonable solution taking into account the separate financial contribution from each parent. A court will depart from the set-off amount or make adjustments to it if it is inappropriate in light of the factors considered under ss. 9(b) and 9(c). The set-off amount must therefore be followed by an examination of the continuing ability of the recipient parent to meet the needs of the child, especially in light of the fact that many costs are fixed. As mentioned by numerous commentators, this is a problem in many cases where there is a great discrepancy in the incomes of the parents (see Rogerson, at p. 64). It is also a problem in cases where one parent actually incurs a higher share of the costs than the other (taking responsibility for clothing or activities for instance). I would also note that the 40 percent threshold itself should be irrelevant to this evaluation; the cliff effect is not merely a result of the threshold; it is a result of the different methodology.

The Court of Appeal (as well as the father) summarized a number of applications of the set-off approach adopted by Canadian courts (see Fletcher v. Keilty (2004), 269 N.B.R. (2d) 302, 2004 NBCA 34 (N.B.C.A.); Slade v. Slade (2001), 195 D.L.R. (4^th) 108, 2001 NFCA 2 (Nfld. C.A.); Dean v. Brown (2002), 209 N.S.R. (2d) 70, 2002 NSCA 124 (N.S. C.A.); Hill v. Hill (2003), 213 N.S.R. (2d) 185, 2003 NSCA 33 (N.S.C.A.); Cabot v. Mikkelson (2004), 242 D.L.R. (4th) 279, 2004 MBCA 107 (Man. C.A.); Dennis v. Wilson (1997), 1997 CanLII 1933 (ON CA), 104 O.A.C. 250 (Ont. C.A.); Wylie v. Leclair (2003), 2003 CanLII 49737 (ON CA), 64 O.R. (3d) 782 (Ont. C.A.); Green v. Green; Berry v. Hart; E. (C.R.H.) v. E. (F.G.) (2004), 29 B.C.L.R. (4th) 43, 2004 BCCA 297 (B.C. C.A.); Luedke v. Luedke (2004), 198 B.C.A.C. 293, 2004 BCCA 327 (B.C. C.A.); Gieni v. Gieni (2002), 29 R.F.L. (5th) 60, 2002 SKCA 87 (Sask. C.A.); see also Children Come First Report: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines, Vol. III (2002) (”Children Come First Report”), at pp. 68-70; J. C. MacDonald and A. C. Wilton, Child Support Guidelines: Law and Practice (2nd ed. (loose-leaf ed.)), vol. 1, at pp. 9-11 to 9-16).

The three main applications of the set-off formula adopted by the courts are:

1. 1. 1. 1. 1. Simple (or straight) set-off: The support payment is calculated by determining the Table amount for each of the parents as though each was seeking child support from the other. The amount payable is the difference between the two amounts (see, e.g., Middleton v. MacPherson(1997), 1997 CanLII 11517 (AB QB), 204 A.R. 37 (Alta. Q.B.); Luedke v. Luedke).
            2. Pro-rated set-off: The Table amount for each of the parents is reduced by the percentage of time the child spends with each parent. The recipient parent’s amount of time with the children is multiplied by the payor’s Guidelines amount and the payor parent’s amount of time with the children is multiplied by the recipient parent’s Guidelines amount. These two pro-rated amounts are then set-off against one another (see, e.g., Moran v. Cook(2000), 2000 CanLII 22542 (ON SC), 9 R.F.L. (5th) 352 (Ont. S.C.J.); Harrison v. Harrison(2001), 2001 CanLII 60967 (ON SC), 14 R.F.L. (5th) 321 (Ont. S.C.J.); E. (C.R.H.) v. E. (F.G.) ). A variation of this approach is the “straight pro-rate” which takes the percentage of time the recipient parent has custody of the children multiplied by the Guidelines amount for the payor parent.
            3. Set-off plus multiplier: The set-off amount (simple set-off or pro-rated set-off) is increased by a multiplier (usually 1.5), based on the assumption that a portion of the recipient parent’s costs are fixed, and therefore, unaffected by the increased time the child spends with the other parent.

I agree with the father and the Court of Appeal that the simple set-off is preferable to the pro-rated set-off as a starting point for the s. 9 analysis in view of the language used by the legislator in para. (a).  …”

         Royer v. Peters, 2021 ONSC 1637 (CanLII) at 44

“A Mareva injunction is an extraordinary remedy because it constitutes a form of pre-trial execution. In Aetna Financial Services Inc. v. Feigelman, 1985 CanLII 55 (SCC), [1985] 1 S.C.R. 2, the Supreme Court of Canada cautioned that the imposition of such a remedy can be harsh and care must be taken to ensure that its use is not a form of “litigious blackmail”. The Ontario Court of Appeal in Chitel v. Rothbart (1982), 1982 CanLII 1956 (ON CA), 141 D.L.R. (3d) 268 held that Mareva injunctions are the exceptions to the rule.

The requirements for a Mareva injunction are as follows:

1. 1. 1. 1. The moving party should make full and frank disclosure of all matters in his knowledge which are material for the judge to know;
         2. The moving party should give particulars of his claim against the defendant/respondent, stating the ground of his claim and the amount thereof, and fairly stating the points made against it by the defendant/respondent;
         3. The moving party should give some grounds for believing that there is a risk of the assets being removed before the judgment or award is satisfied;
         4. The moving party must, of course, give an undertaking in damages;
         5. The moving party should give some grounds for believing that the defendant/respondent has some assets here: Third Chandris Shipping Corp. v. Unimarine S.A., [1979], Q.B. 645 (Eng. C.A.); Chitel.”

       Curtis v. Curtis, 2019 ONSC 1527 (CanLII) at 34-35

“As set out by Chappel, J., in “Striking Pleadings in Family Law – Part 1: Introduction and Overriding Principles”, 2019 CanLIIDocs 3941, the case-law has established the following analytical framework and considerations that apply when dealing with a motion to strike the party’s pleadings on the basis of non-compliance with court orders or Rules:

a.  First, the judge must be satisfied there has been non-compliance (Mullin v. Sherlock, 2018 ONCA 1065 (CanLII), at para. 44. At this step, it is critical that the motion judge outline in detail their findings respecting the party’s non-compliance with any relevant orders or Rules (Kovachis v. Kovachis, 2013 ONCA 644).

b.  Second, if the court is satisfied that there has been non-compliance, the court must assess the most appropriate remedy based on the particular facts of the case before the court. In undertaking this task, the court should consider and weigh the following factors:

i.   The extent and persistence of the non-compliance (Horzempa v. Ablett, 2011 ONCA 633 (C.A.), at para. 7;

ii.   Whether the disobedience of the orders and Rules was wilful in nature (Marcoccia, supra, at para. 13; Kovachis, supra, at para. 3; Manchanda v. Thethi, 2016 ONCA 909, at para. 9);

iii.   Whether the non-compliant party made reasonable efforts to comply and is able to provide acceptable explanations for the breaches (Chiaramonte v. Chiaramonte, 2013 ONCA 641, at para. 37; Brisson v. Gagnier, 2014 ONCA 909 (C.A.) at para. 3; Marcoccia, supra, at paras. 10-12; Horzempa, supra, at para. 6; Mullin, supra, at para. 45;

iv.  Where the non-compliance relates to support orders, the payor’s financial circumstances and their ability to pay support (Higgins v. Higgins, 2006 CarswellOnt 5893 (C.A.); and

v.   The remedy should be proportionate to the issues in question and the conduct of the non-compliant party (Kovachis, supra, at para. 3; Manchanda, supra, at para. 9; Mullin, supra, at para. 49). It should not go beyond what is necessary to express the court’s disapproval of the conduct in issue (Marcoccia, supra, at para. 14; Pucaru, supra, at para. 49).”

         Sheresht v. Abadi, 2021 ONSC 1665 (CanLII) at 48