Month: March 2023

“The applicable principles to be considered a motion for sale of jointly owned properties during family law proceedings were set out in Dhaliwal v. Dhaliwal (2020) ONSC 3971, at para. 16:

a.   Section 2 of the Partition Actempowers the court to order the sale of a jointly owned property, including a matrimonial home.

b.   A joint tenant has a prima facie right to an order for the partition or sale of property held with another joint tenant.

c.   A court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made.

d.   The other joint tenant has a corresponding obligation to permit the sale. These are fundamental rights flowing from joint tenancy.

e.   The onus is on the party who opposes a sale to establish that there is a sufficient reason, recognized in law, why the court should exercise its discretion to refuse a sale.

f.   Generally, the party opposing the sale must show malicious, vexatious or oppressive conduct relating to the partition and sale issuein order to avoid the sale.

g.   Each case must be considered on its own facts. The court must consider all relevant factors in exercising its discretion.

h.   In family law cases, an order under the Partition Actshould generally not be made until any dispute related to the property has first been determined.

i.   The Family Law Actdoes not displace the Partition Act. But in family cases a partition application should generally not be granted where it can be shown that a legitimate family law claim would be unfairly prejudiced.

j.   In assessing and guarding against potential prejudice, the court must take a realistic view of the potential impacts of a sale – both positive and negative – in relation to the interests of both joint tenants, and the family as a whole. Where the financial or other circumstances of the parties are such that a sale would be the inevitable result at trial, there is little justification for delaying the sale.

…

m.   Orders for sale of a matrimonial home at the interim stage should not be made as a matter of course. The court must be mindful of the whole of the proceeding, and the need to achieve a final resolution for the family as fairly and expeditiously as possible.

n.   Timing can be a relevant consideration in dealing with a motion for sale at a temporary stage. The availability of a trial within a short period might reduce the pressure for an immediate sale.

…

r.   A pending equalization claim may also be relevant. The court cannot compel one joint tenant to sell to the other. Nor can it give either joint tenant a right of first refusal.  But a recipient of an equalization payment may propose to set that entitlement off against their former spouse’s share of the equity in the home. If a sufficiently particularized proposal seems viable — and especially if it would benefit a child — sale should be delayed to allow proper consideration of that option.

s.   The court must consider and attempt to guard against potential prejudice. Are there realistic issues or claims yet to be determined on a final basis, which would be prejudiced or precluded if a property is ordered to be sold at the temporary stage? [Citations omitted.]

The Divisional Court, in Nogueira v. Nogueira, 2021 ONSC 7564, at para. 3, recently cited Dhaliwal with approval.

Neither Dhaliwal not Nogueira involved farms, but the above principles remain applicable here. However, s. 11(1) applies to farms so additional considerations are in play.”

            Urness v. McDonald, 2022 ONSC 1697 (CanLII) at 9-11

“Separation in the context of family law litigation presumes that cohabitation no longer exists.  Pursuant to s. 1(1) of the Family Law Act, “cohabit” means to live together in a conjugal relationship, whether within or outside marriage.  Cohabiting is something more than simply sharing the same address.  Parties may not be cohabiting even if living under the same roof.  Separation has been described as the point in time when either party regards the relationship as being at an end and by his or her conduct demonstrates that this is a settled intention.  A much-cited case addressing the issue of cohabitation and determination of whether parties are spouses under the legislation is Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376.  In that case, Kurisko J. reviewed a considerable bank of law relating to cohabitation and listed areas that he considered relevant to determining whether a spousal relationship exists.  These considerations are equally important when deciding the question of whether and/or when a separation actually has occurred. Found at para. 16 of this decision, the list entails:

(1)         SHELTER:

(a)    Did the parties live under the same roof?

(b)    What were the sleeping arrangements?

(c)    Did anyone else occupy or share the available accommodation?

(2)         SEXUAL AND PERSONAL BEHAVIOUR:

(a)    Did the parties have sexual relations? If not, why not?

(b)    Did they maintain an attitude of fidelity to each other?

(c)    What were their feelings toward each other?

(d)    Did they communicate on a personal level?

(e)    Did they eat their meals together?

(f)      What, if anything, did they do to assist each other with problems or during illness?

(g)     Did they buy gifts for each other on special occasions?

(3)         SERVICES:

What was the conduct and habit of the parties in relation to:

(a)    Preparation of meals,

(b)    Washing and mending clothes,

(c)    Shopping,

(d)    Household maintenance,

(e)    Any other domestic services?

(4)         SOCIAL:

(a)    Did they participate together or separately in neighbourhood and community activities?

(b)    What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5)         SOCIETAL:

What was the attitude and conduct of the community towards each of them and as a couple?

(6)         SUPPORT (ECONOMIC):

(a)    What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

(b)    What were the arrangements concerning the acquisition and ownership of property?

(c)    Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7)         CHILDREN:

What was the attitude and conduct of the parties concerning children?”

         Pennington v. Pennington, 2022 ONSC 1631 (CanLII) at 23

“There is no dispute that the Court retains a very limited discretion to vary a final order (and in particular, one obtained on consent of the parties) on a temporary basis.  In the recent decision of S.H. v. D.K., 2022 ONSC 1203 (CanLII), the Divisional Court described the test for granting a temporary variation of a final order to be “stringent”, requiring any supporting evidentiary basis to be quite “compelling”.

The final order sought to be varied in the S.H. decision was a final parenting order, and not a final support order.  Is the test for a temporary variation of a final support order (within a pending Motion to Change) some type of different animal?

Absent a settlement between the parties, the Applicant’s Motion to Change will ultimately result in a formal hearing.  In the Toronto region, motions to change are no longer proceeding by way of trial, but will be heard as long motions going forward.

The jurisprudence relied upon by the Applicant to support her view that this Court has a more general discretion to vary final orders on a temporary basis is not helpful.  During argument, counsel for the Applicant referred the Court to three decisions in support of her position.  I have reviewed those three decisions and cannot find the necessary foundation to support the Applicant’s position.

In Gordon v. Guimont 2016 ONSC 4569 (CanLII) Justice Doyle granted a request to require a father to pay both retroactive and ongoing child support, together with an order sharing section 7 expenses.  On my review of this decision, Justice Doyle was actually hearing the Motion to Change itself.  This appears to be self-evident as Justice Doyle relied upon, inter alia, formal expert income valuation reports filed by both parties.

The Applicant also relies upon the decision of Justice Wolder in Bertram v. Murdock 2006 ONCJ 69 (CanLII).  In Bertram, the mother sought a temporary order of child support and payment of section 7 expenses for the child of the marriage attending university at the time.  There is nothing in the Bertram decision which relates to the within proceeding, as there was no Motion to Change before Justice Wolder who explicitly notes that the mother had commenced an application for child support.

Finally, the Applicant relies upon the decision of Justice Labrosse in Gorska v. Gorski 2015 ONSC 7522 (CanLII), in which the Court heard a motion by the mother for a temporary order for retroactive and ongoing child support together with payment of both retroactive and current section 7 expenses.  Once again, Justice Labrosse was not faced with a situation where either party was bringing a Motion to Change.

In the within proceeding, the Applicant’s motion is essentially akin to a request for partial summary judgment, as the Applicant would obtain (at least in part) temporary relief which she seeks on a final basis in the face of a consent final order which still needs to be varied.

In what circumstances should, or more particularly can, the Court grant such temporary relief in the face of a pending Motion to Change?

Section 17(1) of the Divorce Act, R.S.C. 1985, c. 3 allows a judge of this Court to vary, rescind or suspend a support and/or parenting order.  Section 17(4) of the Divorce Act provides that an order under section 17(1) may only be issued if a moving party satisfies the Court that there has been a material change in circumstances.  I note that the Applicant is not seeking a review, but a formal variation on her Motion to Change.  As such, a material change in circumstances must be found in to order to grant the relief she ultimately seeks.

On this motion, the Applicant seeks a temporary variation of an existing (ie. final) support order pending the hearing of Motion to Change.  In S.H., Justice Dambrot speaking for the Divisional Court offered the following helpful comments when dealing with a temporary request to vary an existing parental arrangement set out in a final order:

“Pazaratz J. went on to say at para. 52 of F.K. v. A.K. that the need to exercise caution is heightened where the existing parental arrangement has been determined by a court order, and that the level of required caution is further heightened if the court is being asked to change a final parenting order on a temporary basis. While the court has the authority to grant a temporary variation of a final order in the appropriate circumstances, the evidentiary basis to grant such a temporary variation must be compelling. The onus is on the party seeking a temporary variation to establish that in the current circumstances the existing order results in an untenable or intolerable situation, jeopardizing the child’s physical and/or emotional well-being, and that the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation.

The imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle, since the purpose of an interim or temporary order is simply to provide a reasonably acceptable solution to a difficult problem until trial, when a full investigation will be made: Sypher v. Sypher (1986), 1986 CanLII 6337 (ON CA), 2 R.F.L. (3d) 413 (Ont. C.A.) at p. 414. There is a long line of cases prior to the decision in F.K. v. A.K. that insist on a stringent test. I will mention only a few.

………

To all of this, the appellant added, in her factum, that this stringent test (i) ensures that important and difficult decisions relating to a child’s best interests are not, save for exceptional circumstances, made on the basis of incomplete information, (ii) limits the amount of judicial resources that are allocated to cases which have already been resolved by way of a court order, and (iii) ensures that a child’s routine and schedule are not turned upside down on a motion only to be potentially changed again at a final hearing. I adopt these considerations as well as those identified in the cases I have referred to.

The motion judge accepted the statement of the law in F.K. v. A.K., with one caveat. While he agreed that there must be compelling evidence to support changing a final order on an interim basis, he cautioned that the stringent test in F.K. v. A.K. should not be read in a manner that places too much emphasis on maintaining the status quo.

I have already said that the imposition of a stringent test for the granting of a temporary variation of a final parenting order of a court is sound in principle and consistent with authority. Before embarking on an inquiry into the best interests of the child, the court must first be satisfied that circumstances exist of so compelling and exceptional a nature that they require an immediate change. I would only caution that there may be exceptional circumstances that justify a temporary variation of a final order other than those described in F.K. v. A.K. It will be recalled that Pazaratz J. insisted that a temporary variation of a final parenting order could only be made where the child’s physical and/or emotional well-being is in jeopardy and the proposed new arrangement is so necessary and beneficial that it would be unfair to the child to delay implementation. That is certainly an indication of how exceptional the circumstances must be to make an interim variation of a final parenting order, but I would not foreclose the possibility that other, equally compelling circumstances might meet the test.”

I see no compelling reason to avoid using the same approach when dealing with a temporary request to vary existing final support orders.  The Applicant has engaged this Court’s jurisdiction to assess the merits of her request to vary the Paisley Order on a permanent basis.  That request requires a fulsome, thorough hearing by way of a long motion (in the Toronto Region).  If this Court is to implement an “immediate change” to the existing support arrangements in the Paisley Order, the Applicant must demonstrate, at a minimum, the existence of compelling and exceptional circumstances to warrant that temporary variation.”

            Pham v. Ho, 2022 ONSC 1625 (CanLII) at 6-17

“Justice Kraft addressed the challenge of imputing income at interim stage in Lidell-MacInnis v. MacInnis:

[75]           The   court   may   impute   income   to   a   party in   the   context   of   a   motion for temporary spousal or child support, but should exercise caution in doing so having regard for limitations on the court’s ability in the context of a motion to obtain a complete and accurate picture of the parties’ respective situations. This is particularly so in cases where the parties are still in the process of formulating plans and goals for re-organizing their affairs and lives in independent households. However, the decision as to whether or not income should be imputed ultimately remains in the discretion of the motions judge and depends on the particular facts of each case

d.    Once again, given the fact that the parties could have already had their trial – and they can still have their trial within a few months if they choose to make themselves available – I am not prepared to guess and make assailable findings within the needlessly restrictive (in this case) confines of a motion.

e.    Based on the incomplete, contradictory and untested evidence before me, I am not prepared to impute income to the father on an interim basis. This is a complex determination which must await what should be an imminent trial.

f.    Motions for interim support are usually presented relatively soon after separation.  But even if they are brought late in the litigation stream, motions are no replacement for a trial.  As Justice Charney recently noted in Da Silva v. Kelly, 2022 ONSC 1402 (SCJ), the level of analysis is inherently more limited at the motion stage:

[75]         Motions for interim support are summary in nature. The Court will generally not conduct a detailed investigation into the merits of the case: Singh v. Singh, 2013 ONSC 6476, at para. 11; Sandhu v. Dhillon, 2021 ONSC 1143, at para. 14. The full financial circumstances of the parties are not yet available, and a complete inquiry into all aspects and details of the case will have to wait until trial: Matus v. René, 2021 ONSC 1925, at para. 120. As stated by the British Columbia Court of Appeal in Tedham v. Tedham, 2003 BCCA 600, at para. 59:

An interim order is just that — one made pending trial, with the expectation that the full financial circumstances of the parties will be forthcoming and available to the trial judge. In most cases, interim orders are made in circumstances where there has not been full financial disclosure and the parties are well aware that some adjustment may have to be made once all of the relevant financial information is available.

[76]         I am also guided by the principles set out by Harvison Young J. (as she then was) in Teitler v. Dale, [2017] O.J. No. 182, at para. 23 (as reproduced by Faieta J. in Nifco v. Nifco, 2018 ONSC 2603, at para. 22):

1. 1. 1. 1. 1. 1. On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance;
               2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
               3. On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
               4. The courts should not unduly emphasize any one of the statutory considerations above others;
               5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
               6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
               7. Interim support should only be ordered where it can be said a prima faciecase for entitlement has been made out; and
               8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.”

         Gafanha v. Gafanha, 2022 ONSC 1613 (CanLII) at 49

“In reaching my decision with respect to whether the time spent by counsel and his legal team is reasonable and proportionate, I have also kept in the forefront of my mind the words of the court in D’Andrede v Schrage, 2011 Carswell on 5124 (SCJ) at paragraph 8, the court writes:

8      In reviewing Ms. D’Andrade’s detailed claim for full recovery costs there is nothing in that claim that would cause me to conclude that the charges were so grossly excessive that they should be second guessed by me. She retained thorough and competent counsel who took the steps necessary to advance her claims and defend her against the numerous claims that were being made against her by Mr. Schrage. With respect to the concept of proportionality, I agree with the comments of Gray J. in Cimmaster Inc. v. Piccione, 2010 CarswellOnt 609 (Ont. S.C.J.) at para. 19 where he states as follows:

The concept of proportionality should not normally result in reduced costs where the unsuccessful party has forced a long and expensive trial. It is cold comfort to the successful party, who has been forced to expend many thousands of dollars and many days and hours fighting a claim that is ultimately defeated, only to be told that it should obtain a reduced amount of costs based on some notional concept of proportionality.”

         Barran v. Schanck, 2019 ONCJ 218 (CanLII) at 74

“For there to be an enforceable oral agreement, it is necessary for the three basic elements of contract formation to have been satisfied:

a)                  there must be an offer;

b)                  The offer must be accepted; and

c)                  There must be consideration provided with the acceptance.

When the agreement is oral, there must be additional factors present including certainty regarding the essential terms of the agreement and the intention to create a legally binding agreement. (IMG Canada Limited v. General Motors of Canada Limited, 2017 ONSC 3841, at para 9, citing Donovan Homes Ltd. v. Modern Paving Ltd., 2011 NLCA 39, 308 Nfld. & P.E.I.R. 180, at paras. 30, 32-33).

When determining whether there was an intention to create a legally binding contract, the court must determine whether there was a “meeting of the minds” such that an agreement was formed. A meeting of the minds is established when the following is present:

“… [T]he parties will be found to have reached a meeting of the minds, in other words be ad idem, where it is clear to the objective reasonable bystander, in light of all the material facts, that the parties intended to contract and the essential terms of that contract can be determined within a reasonable degree of certainty …”

(UBS Securities Canada Inc. v. Sands Brothers Canada Ltd., 2008 CanLII 19507 (ONSC); [2008] O.J. No. 1676, at para. 40 (Ont. S.C.J.), Pepall J.)”

            Spencer v. Hutchings, 2022 ONSC 1555 (CanLII) at 33-35

“Although on a temporary motion, courts should be cautious against ordering a disruption to the status quo, that is not to say there is a strict presumption in favour of the status quo.  Each case turns on its own particular facts, and in this matter although I considered the status quo, the court is mindful of parties who have imposed a status quo through unilateral decisions and without consulting or obtaining the consent of the other party, as is the case in the matter at bar. In L.M.B. v. F.J.D., 2020 ONCJ 239, at para. 31, Cheung J. writes:

The legal status quo is not a status quo created by one party unilaterally taking matters into their own hands, without any consent from the other party. (See Batsinda v. Batsinda, 2013 ONSC 7899 (CanLII), [2013] O.J. No. 6120 (Ont. S.C.J.), paragraph 28 and Kimpton v. Kimpton, [2002] O.J. 5367 (Ont. S.C.J.), paragraph 1).

In this matter, the court is dealing with a determination of what interim parenting schedule is in the children’s best interests more than two years after the separation.  It is undisputed that the children have been in the respondent’s primary care since separation.  However, it is clear to the court (and an undisputed fact) that the respondent has “imposed” or “directed” the schedule because she believes that it is in the children’s best interests.  In my view, it is inappropriate for the mother to rely on the length of time this imposed schedule has been in place as a reason that it should not be disrupted prior to a trial.  This schedule was never arrived at “on consent”.   In this situation, continuing to delay a change in residential arrangements until trial is not appropriate: see J.D. v. N.D., 2020 ONSC 7965, at paras 17-23, and Ma.M. v. A.W.M., 2019 ONSC 2128.”

         Pereira v. Ramos, 2021 ONSC 1737 (CanLII) at 38-3

“In my Reasons for Judgment, I found that Amy had not proven any of the allegations of abuse. I found that she had acted in bad faith in the manner in which she conducted the litigation. She aligned herself with professionals who were, unfortunately, willing to advance her allegations and adopt without any question the view that the children needed help to protect themselves from a violent father.

The combination of a parent who is willing to pursue unfounded allegations and professionals who enable that parent by assisting in misrepresenting the evidence is reprehensible and causes harm to the children and others who are living in the intolerable terror of domestic violence.”

            Waterhouse v. Waterhouse, 2022 ONSC 5962 (CanLII) at 8-9

“Counsel for the mother argues that in assessing what is in the best interests of the child at an interim motion, one of the most relevant factors is maintaining the status quo pending trial. Temporary Orders are based on limited evidence without the court having the benefit of cross-examination and therefore, only intended to provide a reasonably acceptable solution to a difficult problem pending trial. Counsel for the mother relies on the decision of Grant v Turgeon, 2000 CanLII 22565 (ONSC) wherein Justice Mackinnon stated that generally the status quo will be maintained on an interim custody motion in the absence of compelling reasons indicative of the necessity to meet the children’s best interests: para 15. Justice Mackinnon goes onto state that the rationale for this principle lies in fairness to the parties and concern for best interests of the child as it is generally not in the best interests to change residential arrangements if there is a possibility of another change pending trial: Grant v Turgeon at para 15.

While there may be circumstances in which maintaining the status is in the child’s best interests, for example if the facts are heavily contradicted and a trial date is scheduled, I do not read Justice Mackinnon’s decision to read that changes to parenting schedules cannot be made during interim motions. The predominant consideration for determining parenting time at any stage of the proceedings is the best interests of the child. The status quo is but one aspect of the best interest test which requires consideration of the history of the child’s care and the need for ongoing stability: Subsections 24(3)(a) and (h) Children’s Law Reform Act, R.S.O. 1990, c.C.12, as am (“CLRA”).

Furthermore, as explained by Justice Leach in Peet v Zolob, concerns about disturbing status quo have more force when that status quo is reasonably clear and one that has been defined by a previous agreement or a court order: Peet v  Zolob,  (2014) ONSC 5748 at para 17. In this case, the fact that the father has abided by the various parenting schedules imposed by the mother in March 2020, March 2021, and September 2021, does not constitute consent or acquiescence.”

            Weinkauf v. Ruest, 2022 ONSC 1472 (CanLII) at 30-32

“The following principles emerge from a review of the caselaw in relation to the duties on a litigant who proceeds without notice. These duties apply wherever a matter proceeds without notice, such as: on an ex parte emergency motion; where the responding party is in default having not filed an answer; and even where the responding party has filed an answer but that answer has been struck for failure to meet obligations in the litigation process. While the duty is at its highest on an ex parte emergency motion where the court is typically asked to make decisions very quickly, and perhaps somewhat attenuated where a respondent party is in “flagrant violation” of court orders, in my view there is no “sliding scale” when it comes to the obligation to disclose material facts to the court.

There is a “very high duty” on the applicant to make “full and frank disclosure” to the court, and a “positive duty” to at least “alert the court” to material facts required to make a just determination: see Caldwell v. Caldwell (2007), 2007 CanLII 1913 (ON SC), 51 R.F.L. (6th) 399 (Ont. S.C.) at paras. 52-53. As stated by Timms J. in that case at para. 52, where the hearing proceeded on an uncontested basis following the striking of pleadings, “there is a reason that the oath administered to witnesses in our courts compels them to ‘tell the truth, the whole truth, and nothing but the truth.’”. In Caldwell, the court found that the applicant failed to meet these obligations when she omitted to advise the court of the respondent’s inheritance, his job loss, and his support obligations to his first wife. See also Sangster v. Sangster (2003), 2003 CanLII 48248 (ON CA), 34 R.F.L. (5th) 154 (Ont. C.A.), an appeal of a decision declining to set aside a final order obtained on default, in which the Court of Appeal for Ontario stated at para. 7:

The want of full and fair disclosure is sufficient reason to allow the appeal and we would allow the appeal on that basis alone. A court is entitled to rely on materials filed as being full and frank, particularly where, as here, the motion is brought on an ex parte basis.

In Caldwell, the court held that the “duty of candour” on a party seeking default judgment is akin to the duty on a party seeking an order on a motion without notice (at para. 53). The caselaw governing the obligations on parties who come to court without notice establish a very high standard of transparency and accountability: Ahmed v. Hawthorne, 2016 ONSC 571, 75 R.F.L. (7th) 230, at para. 24. In Ahmed, where a wife moved to set aside a divorce judgment obtained without notice, Myers J. stated at para. 24: “Parties who seek relief without notice must make full and frank disclosure of all material facts. The failure to do so can itself lead to the order being set aside even where the moving party establishes that he ultimately had good grounds for the relief sought.” In D’Alessio v. D’Alessio, 2010 ONSC 321, 75 R.F.L. (7th) 230, where the husband sought to set aside a default judgment, Ray J. described the overarching test as one of fairness.

Where inaccurate facts could have materially impacted the court’s assessment of the case, thus affecting the outcome, an order may be set aside: Ontario (Director, Family Responsibility Office) v. Shore, 2010 ONSC 5267, [2010] O.J. No. 4148 at para. 8. In Shore, the applicant proceeded on an uncontested basis after the respondent’s pleadings were struck. The final order obtained by the applicant was set aside on findings that Ms. Shore had provided one-sided and inaccurate information to the court. The court found that she failed in her duty to be “careful and candid” and that the misinformation conveyed resulted in a different order than would otherwise have been made. See also Cadas v. Cadas, 2013 ONSC 2608, 34 R.F.L. (7th) 357, per Stevenson J. at paras. 42-48.

The lack of intention to mislead is not a defence to the failure to make full and frank disclosure. The issue is whether the court was in fact mislead: Rosenhek v. Kerzner, 1997 CarswellOnt 2148 (Ont. Gen. Div.) at para. 17; Mosregion Investments Corp. v. Ukraine International Airlines (2009), 2009 CanLII 63600 (ON SCDC), 99 O.R. (3d) 49 (Ont. S.C., at para. 15.  As stated by Cameron J. in Rosenhek at para. 19:

This court relies on full, true, and plain disclosure in all evidence presented to it. It is the foundation for the administration of justice. Compliance with the principle must be scrupulous where a party opposite in interest is not given the opportunity to cross-examine on the affidavit and present other evidence to ensure the facts before the court are complete, true, and plain. Lack of mala fides is not the issue. Substantial compliance with the principle is the issue.

Relevant and material facts relied upon when proceeding without notice, in particular on an ex parte urgent motion, should be specifically referred to in the body of the affidavit: Mosregion at para. 14. See also 830356 Ontario Inc. v. 156170 Canada Ltd., 1995 CarswellOnt 4360 (Ont. Gen. Div.) at para. 23.

However, on a default hearing or uncontested trial, where the court is not under similar time constraints, a court may be taken to be aware of the contents of exhibits filed as evidence in the hearing:  Dodge v. Dodge (2007), 2007 CanLII 80075 (ON SC), 44 R.F.L. (6th) 317 (Ont. S.C.) at para. 48.

The fact that a party’s pleadings have been struck does not open the door to permit the moving party to make less than full disclosure of material facts. Thus, in Shore, the court stated at para. 2, “the fact that Mr. Shore was non-compliant will not deprive him of a remedy in such circumstances as were thereafter created by Ms. Martin.” Similarly, in Caldwell at para. 66, Timms J. stated:

While it is tempting to say that the respondent’s prior “bad conduct” should bar him from arguing that the order of Salmers J. should be changed, it is my view that justice requires that he be allowed to do so.

However, the positive duty referred to above does not extend so far as to prove the respondent’s case for him. In Dodge, the husband sought to set aside an order where he argued in part that the evidence placed before the court on the default hearing was lacking “critical” information that was intentionally withheld from the court. Campbell J. found that all necessary, appropriate, and relevant information was put before the court and that the court was aware of that information. Counsel’s obligation was to be open, honest, trustworthy, reliable, and candid, but there is no obligation to put the other party’s claims or allegations before the court or argue the other party’s case. The husband could not shift his responsibility for his own “avoidant” behavior onto the wife’s counsel (paras. 45–48).

In Gupta v. Gupta, 2019 ONSC 20, [2019] O.J. No. 304, where the father alleged that the mother obtained an order based on fraud and the father’s pleadings had been struck for “flagrant violations of court orders,” the court stated the “Mother’s obligation is to put forward such relevant evidence that Father produced up to that point, as to his income and the value of the assets. She has no obligation to test the veracity, accuracy or reliability of that evidence, nor is she obliged to unearth other evidence within Father’s power to disclose, that he did not disclose” (para. 36). While Gupta seems to suggest a lower standard of required disclosure where the respondent’s behavior has led to the striking of pleadings, the case nevertheless confirms the obligation on an applicant to put forward the “relevant” evidence of the respondent.

I suggest that it can never be appropriate or acceptable to omit material facts or materially misstate evidence to the court. Even where a respondent has failed to obey court orders, resulting in his or her pleadings being struck, this does not justify the applicant’s filing of court documents with material omissions: Caldwell, at para. 55.

I note that some of the caselaw with respect to full disclosure cited above developed under the Ontario Rules of Civil Procedure, in particular under r. 39.01(6) which states that where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and that the failure to do so is in itself sufficient ground to set aside any order obtained. In my view, there would be no reason why the disclosure obligations on applicants proceeding in the family context on an uncontested or ex parte basis or otherwise without notice, would be any less exacting than in the civil context more generally.”

            Irons v. Irons, 2020 ONSC 1471 (CanLII) at 89-100