“The parties agree that as joint owners of McKendry Road they are both presumptively entitled to their share of the net proceeds from the sale. They also agree that the onus is on the applicant as the moving party to show that a preservation order is necessary with respect to the respondent’s share to protect her interest. They further agree that her request is injunctive relief (see section 101 of the Courts of Justice Act), namely a court order that commands or, in this case, prevents an action.
As to the law regarding interlocutory injunctions generally, RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] S.C.J. No. 17, at paragraphs 77 and 80 sets out the governing three-part American Cyanamid test [American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396]. At the first stage, an applicant for interlocutory relief must demonstrate a serious question to be tried. That is to be determined based on a common sense and an “extremely limited” review of the case on the merits. A motions court judge should only go beyond a preliminary investigation of the merits when the result of the interlocutory motion will in effect amount to a final determination of the action, where the only issue is a simple question of law, or where there is no real conflict on the facts. At the second stage the applicant must convince the court that he or she will suffer irreparable harm if the relief is not granted. The third branch of the test requires an assessment of the balance of inconvenience.
Notwithstanding that general test, injunctions seeking to preserve assets prior to trial have always been viewed as largely unavailable based on the principle that execution cannot be obtained before judgment, and judgment cannot be obtained before trial. This is commonly referred to as the ‘general rule in Lister’ from Lister & Co. v. Stubbs, [1886-90] All E.R. 797: see Aetna Financial Services Ltd. v. Feigelman, 1985 CanLII 55 (SCC), [1985] 1 S.C.R. 2, at paragraphs 8 and 9. The court will not grant an injunction to restrain a party from parting with his or her assets so that they may be preserved in case the other party’s claim succeeds (Aetna at para. 8). That is what the applicant is seeking here.
There are a few long established exceptions to the Lister rule as described in Aetna at paragraph 9. Some have since been codified. For example, there is an exception now found in Rule 45 of the Rules of Civil Procedure to the effect that the rule does not apply where the moving party is seeking a restraint on the removal or dissipation of the very asset that is in question in the proceeding. That is not the case here, as the unjust enrichment claim is with respect to a pension, not McKendry Road. However, other exceptions do apply to the applicant’s claims here as set out below, with the question being whether the applicable tests have been met.
The first is that there is a codified exception found in section 40 of the Family Law Act that permits the court to make an order restraining the depletion of a spouse’s property that would impair or defeat a claim to support. It is well established that the usual test for an interlocutory injunction as set out in RJR-MacDonald above applies, the first part being whether there is a serious issue to be tried: Taus v. Harry, 2016 ONSC 219 at para. 33; Price v. Price, 2016 ONSC 728 at paragraphs 5 and 6; Fraser v. Fraser, 2017 ONSC 3774 at para. 59; and Cummings v. Cummings, 2020 ONSC 3093 at para. 82.
The applicant also requests a preservation order related to her claim for unjust enrichment. She argues that the same general interlocutory injunction test (‘serious issue to be tried’) applies. However, she has not established a statutory exception. As an aside, there is an exception at section 12 of the Family Law Act with respect to preservation orders to secure equalization claims, for which the case law suggests that the same usual interlocutory injunction test applies, but we are not dealing with an equalization claim here. The only available exception comes from the common law and is the relatively more recent Mareva injunction. It is only available where the moving party maintains that there is a real risk that the remaining significant assets of the responding party are about to be removed or disposed of as to render nugatory any judgment obtained after trial (see Aetna at paragraphs 15 and 25). Unless there is a genuine risk of disappearance of assets, either inside or outside the jurisdiction, the injunction will not issue (Aetna at para. 26). It requires the moving party to demonstrate a strong prima facie case rather than a good arguable case (Aetna at para. 30). The full test is set out in Chitel v. Rothbart 1982 CanLII 1956 (ON CA), [1982] O.J. No. 3540 (C.A.) at para. 43, 55 to 57, helpfully summarized by Justice Trimble in Karpacheva v. Karpacheva, 2018 ONSC 4563 at paragraphs 33 and 34 as follows (citations omitted):
[33] In order for the court to impose a Mareva injunction the party seeking the injunction must satisfy the court of the following things:
a) the plaintiff must also show that he or she has a strong prima faciecase;
b) the plaintiff must make full and fair disclosure of all material matters within his or her knowledge;
c) the plaintiff must 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) the plaintiff must give the basis for believing that the defendant has assets in the jurisdiction;
e) the plaintiff must give grounds for believing that there is a real risk of the assets being removed out of the jurisdiction, or disposed of within the jurisdiction, or otherwise dealt with so that the plaintiff will be unable to satisfy a judgment awarded to him or her; and
f) the plaintiff must give an undertaking as to damages.
The factors outlined above are guidelines for the Court to consider as opposed to rigid criteria each of which must be met before the Mareva will issue. The Court, under Section 101 of the Courts of Justice Act, should ask whether it is just and equitable that a Mareva should issue …
I note that some of those criteria are directed at the circumstances where the injunction is sought on an ex parte basis (ie. subparagraphs 33 (b) and (c)), which is not the case here. They are in addition to the usual interlocutory injunction criteria requiring a finding of irreparable harm and a balance of convenience: see Cummings v. Cummings paragraph 67 citing Electronics Inc. v. Sualim, 2014 ONSC 5050 at para. 67.
The Mareva injunction test has been applied recently in a number of family law cases, a few of which have already been noted: for example see Karpacheva v. Karpacheva, Laliberte v. Monteith, 2018 ONSC 7032, Hadaro v. Patter, 2019 ONSC 4574, and Cummings v. Cummings.”
Boutin v. Loucitt, 2021 ONSC 5594 (CanLII) at 11-18