Cosentino v. Cosentino, 2017 ONSC 6031

CITATION: Cosentino v. Cosentino, 2017 ONSC 6031

NEWMARKET COURT FILE NO.: FC-13-43164-01

DATE: 20171106

SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE: Karina Veronica Cosentino, Applicant

and

Benito Aldo Cosentino, Respondent

BEFORE: The Honourable Mr. Justice D.A. Jarvis

COUNSEL: H. Evans, Counsel for the Applicant

R. Forget, Counsel for the Respondent

HEARD: October 4, 2017 (Motions)

Ruling on motions

jarvis j.

[1] There are two motions before the court. The parties are former spouses but, for the ease of convenience, they shall be referenced as “the wife” and “the husband.”

[2] The wife seeks an Order for various relief, her principal request being that the current Motion to Change proceedings brought by the husband be stayed pending his compliance with final Orders of the court made in 2016, and for directions.

[3] The husband requests an Order that the wife (and the children residing with her) vacate the parties’ former matrimonial home of which he is the sole registered owner, and that he be granted leave to amend his Motion to Change to claim spousal support.

[4] There is a significant procedural history. The most important events to the motions now before the court are the following:

(a) the wife started these proceedings on April 16, 2013 for a broad range of relief which included custody of the parties’ two children, equalization of net family properties, child and spousal support and a divorce;

(b) on April 16, 2013 Rogers J. made an Order which, among other things, directed that the parties continue to share living in the matrimonial home, but that the husband reside in the basement area and the wife and children in the upper floors;

(c) on September 15, 2014 Nicholson J. varied the Order of Rogers J. and required the husband to vacate the home. This left the wife in effective exclusive possession of it;

(d) on October 19, 2015 McGee J. bifurcated the proceedings. The custody and access issues were to be tried separately from the financial issues. The Trial Scheduling Endorsement identified child and spousal support and equalization of the parties’ net family properties as the financial issues for trial. That trial was ordered to proceed during the November 2015 sittings. Any trial of the children’s issues was traversed to the May 2016 trial sittings;

(e) the trial of the financial issues started on December 1, 2015 for four days and was continued for two days in 2016, concluding on March 15, 2016. Judgment was reserved;

(f) on March 15, 2016 Douglas J. granted a divorce Order;

(g) on June 16, 2016 Reasons for Judgment were released. Douglas J. made certain findings of fact with respect to the value of the husband’s assets and debts for the purpose of calculating his net family property. This was a final Order. Directions were given with respect to calculating the equalization payment owed to the wife. Based on his qualifying income of $119,318, the husband was ordered to pay $1,652 monthly child support (two children) and spousal support of $1,589 monthly;

(h) the husband appealed the Order of Douglas J.;

(i) on September 16, 2016 Douglas J. held a teleconference with counsel. The following endorsement is relevant,

In the event of any absence of clarity in my Reasons for Judgment released June 16/16, the issue of exclusive possession of the MH [matrimonial home] was not before me at trial. References to A’s [the wife] planned departure from MH were contextual only[^1]. There is no order that A vacate the MH and it appears there is a temporary order for possession in favour of A, made in 2014 that remains in effect as the remaining issues move on to trial.

The parties are free to bring motions to address issues re: needed repairs to the MH including roof, and venting re: furnace and water heater.

(j) on September 26, 2016 Douglas J. amended his earlier spousal support Order to require that the husband pay to the wife monthly support of $1,121. The wife was awarded an equalization payment of $398,490 together with pre-judgment and post-judgment interest calculated from April 2013. The husband was also ordered to pay to the wife $10,000 for costs within 60 days;

(k) the husband appealed;

(l) on October 25, 2016 Lauwers J.A. made an Order that, pending the disposition of the appeal, the husband pay a reduced sum of $1,412 for combined child and spousal support. The appeal was directed to be expedited and heard in March 2017;

(m) the husband scheduled a case conference in this court for March 20, 2017. McGee J. commented on the irregularity of the procedure taken by the husband.

Mr. Cosentino scheduled a case conference today under the most bizarre circumstances. He wants to vary a Final Order under appeal. He cannot vary it, and he is withdrawing his appeal.

Mr. Cosentino wants his former spouse out of the home without paying her the equalization first.

This conference is wrongly scheduled. The respondent shall pay costs of $1,000 forthwith.

The proper step is a TSC [Trial Scheduling Conference] on the issues remaining for trial (this application was bifurcated).

If Mr. Cosentino wishes to bring a Rule 15 Motion to Change support payable after July 2016 see Gray v. Rizzi ONCA – he may do so, but it is not a proper subject matter of this proceeding as child and spousal support is governed by a Final Order.[^2]

(n) on July 7, 2017 the Court of Appeal dismissed the husband's appeal for failing to pay the interim child and spousal support ordered by Lauwers J.A. and for not pursuing or perfecting his appeal on a timely basis. The wife was awarded costs of $3,750 inclusive of disbursements and HST;

(o) on July 11, 2017 the husband started a Motion to Change the June 16, 2016 Order of Douglas J.[^3] He requested a decrease in the amount of child support payable, termination of spousal support and Orders that the wife vacate the former matrimonial home owned by him and pay to him occupancy rent from and after June 16, 2016. The wife responded by claiming, among other things, lump sum support, transfer of the matrimonial home to her or its sale and the funds paid into court or to her or her solicitor in trust;

(p) without notice to, or consultation with, the wife’s counsel the husband’s counsel scheduled a December 18, 2017 case conference;

(q) on August 19, 2017, the wife brought the motion now before the court;

(r) on September 21, 2017 the husband brought a motion for an Order that the wife vacate the parties’ former matrimonial home and that he be permitted to amend his Motion to Change to claim spousal support from the wife; and

(s) on September 29, 2017, in accordance with the practice of this court dealing with Motion to Change proceedings, the parties attended a Dispute Resolution Officer. They signed a Consent permitting the husband to amend his Motion to Change to claim spousal support and allowing the wife to amend her Response. It does not appear from the Record that any court Order was made that day based on the parties’ consent or that either party took steps afterwards to have an Order presented to the court for its consideration. The husband requests that relief in any event;

(t) there is a reference in the court’s booking schedule (but not confirmed in the FRANK system) to a case conference before Douglas J. on December 18, 2017 and a settlement conference, which has been confirmed by the court offices, before McGee J. on January 8, 2018.

[5] It is undisputed that the husband has not paid the $10,000 costs award made by Douglas J. on September 26, 2016, the $1,000 costs awarded by McGee J. on March 20, 2017 nor the $3,750 costs ordered by the Court of Appeal on July 7, 2017. The unpaid costs total $13,250, excluding interest.[^4]

[6] The husband has not complied with the child or spousal support Orders.[^5] He even failed to fully pay the reduced amount for support ordered by Lauwers J.A. as a condition of his appeal being heard, the non-compliance with which term was one of the reasons why his appeal was dismissed. The support arrears exceed $23,324. Since March 2017, the husband has chosen to pay only $438 a month for support.

[7] It is also undisputed that the husband has not paid the equalization payment. A July 20, 2017 Notice of Garnishment filed by the wife claimed that the husband owed her $415,097.27 which included the unpaid equalization payment ($398,490), post-judgment interest ($6,445.52) and costs ($10,000) including interest. This calculation does not appear to take into account anything for pre-judgment interest, or the unpaid costs awarded by the Court of Appeal or by McGee J. and would not take into account the support arrears being enforceable by the Director of the Family Law Responsibility Office.

[8] Roughly estimated, the husband owes the wife in excess of $441,000 as of early August 2017. This amount includes support arrears, some of which may be varied depending on the outcome of the Motions to Change.

[9] On September 1, 2017 the husband had his lawyer deliver to the wife’s lawyer, without prior notice to or agreement with the latter, a certified cheque for $408,850 and an ‘Eviction Notice’ demanding that the wife and children vacate the former matrimonial home by September 30, 2017. It appears that the amount of the cheque represents the equalization payment and trial costs only, no interest. The wife declined to accept the payment since it did not purport to settle either what the husband had been ordered to pay or the issues which he had raised in his Motion to Change. The tender of the cheque was unilateral.

Order non-compliance/Stay of proceedings

[10] The wife has argued that in light of the husband’s failure to comply with the final Orders dealing, at least, with payment of the equalization award and the associated costs of the earlier proceedings, his motion should not be heard and his (not her) Motion to Change be stayed.

[11] Family Law Rules 1(8) and (8.1) provide as follows,

Failure to Obey Order

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion,

motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) not relevant;

(e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;

(f) an order postponing the trial or any other step in the case; and

(g) on motion, a contempt order.

Failure to Follow Rules

(8.1) If a person fails to follow these rules, the court may deal with the failure by making any order described in subrule (8), other than a contempt order under clause (8) (g).

[12] Both parties referred to conference efforts involving Douglas J[^6]. and McGee J. to co-ordinate payment of the equalization payment and vacant possession of the former matrimonial home. The issue is complicated by the parties’ divorce and the uncertainty whether the possession Order made by Nicholson J. continued after Douglas J. finally disposed of the parties’ financial issues on September 26, 2016.

[13] In Miller v. Miller[^7] the parties divorced before a trial in which the former wife (“the wife”) was awarded child and spousal support and, in the event of default of payment, exclusive possession of the parties’ former matrimonial home. While expressing sympathy for the wife who was otherwise without security of payment for the support payable, the Court of Appeal allowed the husband’s appeal. A spouse’s right to claim exclusive possession is lost upon termination of marriage unless preserved by a prior court Order or separation agreement.

[14] It is noteworthy that the only issue before the appellate court in Miller was whether the court had jurisdiction to make an Order for exclusive possession of a matrimonial home when the parties were no longer spouses. As observed by the late Professor McLeod in an annotation to the decision, it is unclear from the court’s reasons whether the issue was considered in the context of support and securing support rights against property interests, of which possession is an incident. It is not a given that possession of a former matrimonial home may be not awarded in appropriate circumstances where a support claim (or its variation) is involved.

[15] There is nothing in the Orders made by Rogers J. and Nicholson J. which clearly and unambiguously continued the wife’s right to possession after divorce or a trial. In fact, the interim nature of the Orders dealing with possession was clearly noted by McGee J. in the endorsement made at the trial management conference. After commenting that “…[m]atters are out of hand, both substantively and procedurally…” McGee J. observed that one of the issues involved “…[T]ermination of Order granting mother exclusive possession of home-which will occur at trial, upon finding of equalization payment”. The finite nature of the possessory Order was implicitly, if not explicitly, apparent too in Douglas J.’s Reasons for Judgment. In a reference to potential income available to the husband for support payment purposes relating to a rental unit in the home (and as already noted), Douglas J. observed that “…[w]hen the Respondent [the husband] resumes possession of the matrimonial home this summer, the Applicant’s position will no longer represent an impediment to this income stream.”[^8]

[16] The husband has no reasonable excuse for his non-compliance with the equalization payment judgment or payment of the costs awarded in those proceedings and these, including pre and post-judgment interest, but there is a prima facie credible basis for varying his support obligations based on his health and the wife’s increase in income since the 2016 trial, both of which may constitute material changes in circumstance. Whether the wife has any continued right to occupy the former matrimonial home is arguable. However, resolution of all of these issues is complicated by the irregular way in which the parties have made their competing claims.

Procedure

[17] The child-related and financial issues were bifurcated for trial purposes by McGee J. on October 19, 2015 with the financial issues directed to be tried (as they were) during the November 2015 sittings of the court. The Trial Scheduling Conference Endorsement form (“TSCE”) completed that day, reviewed and signed by the parties and their counsel and included in the Trial Record identified child and spousal support and equalization as the only issues for trial. In the Overview to his Reasons for Judgment dated June 16, 2016, Douglas J. identified the issues for trial, all of which accorded with the TSCE form and none of which identified as trial issues possession of the parties’ former matrimonial home, occupancy rent or any claim for spousal support by the husband.

[18] It seems clear from the foregoing that all issues not related to the children, as agreed by the parties, were tried and finally decided by Douglas J. The husband’s appeal from the final Order made on June 16, 2016 was dismissed by the Court of Appeal. No appeal was taken from the final Order made on September 26, 2016.

[19] Family Law Rule 15 applies to Motions to Change final Orders or agreements for support filed with the court.

(2) Subject to subrule (3), this rule only applies to a motion to change,

(a) a final order; or

(b) an agreement for support filed under section 35 of the Family Law Act.

[20] The husband's motion to change the support terms of the final Orders[^9] is properly brought under this Rule. As is the wife’s claim for lump sum support. The balance of the relief sought by each party involving possessory rights, occupation rent, the husband's claim for spousal support and the wife’s claims for transfer of the home to her or its’ sale are not the subject of any prior final Order.

[21] In Colt v. Colt[^10] the parties (also former spouses) brought competing Motions to Change the terms of a Separation Agreement. Perkins J. observed,

… [R]ule 15 of the Family Law Rules specifies the procedure by which certain kinds of claims – those seeking to change either an agreement for support or a final order – are brought. It does not purport to create the right to any such remedy or the jurisdiction of the court to entertain the claim. All it does is to say that if you have this kind of a claim and if the court has jurisdiction to hear it, use the procedure set out in rule 15[^11].

[22] Neither party in Colt was seeking to invalidate or set aside their agreement but rather to change its terms dealing with custody and support, and to modify other terms impacting the equalization payment and liability for legal fees incurred for the agreement’s preparation. After dismissing as statutorily unavailable the parties’ claims dealing with property issues, Perkins J. added,

…[R]ule 15 is definitely not available for a claim falling within a “corollary relief proceeding” under the Divorce Act. Nor is it appropriate for a claim to enforce a separation agreement. Those claims are all properly made in an application, defended in an answer (which could also contain claims against the applicant) and proved (if not settled) by oral evidence at a trial[^12].

[23] As there was a sufficiently robust evidentiary record in Colt, no disputed facts and the parties’ consented to a final adjudication of the issues, Perkins J. deemed the motions to constitute the pleadings and the affidavits as evidence and dealt with the support issues.

[24] The husband's claim in these proceedings was never raised in the proceedings which led to the final Orders. It is a “corollary relief proceeding” as noted by Perkins J. The wife’s claims relating to the transfer and sale of the matrimonial home could have been, but apparently were not, raised as issues in the proceedings tried by Douglas J. It is not an unreasonable inference that both parties expected that with the resolution of the equalization payment and support issues, the husband would regain possession of the home and that the wife and children would live elsewhere. The importance of properly identifying issues for trial at the trial management conference or in the trial scheduling conference form cannot be underestimated.[^13]

[25] In appropriate circumstances unadjudicated family law claims or claims which may relate to the spouse's affairs and which may not have already been captured by earlier decisions may be determined together with a request to change the variable terms of a final Order. In Collins v. Colling,[^14] the parties had signed a Separation Agreement that dealt with the father’s child support obligation but did not address the issues of custody and access. The agreement was filed with the court. The mother wanted to change the amount of child support payable, and to obtain an Order for custody. Chapelle J. observed that the mother was entitled to bring her application and include that in her Motion to Change.

[30] …Rule 8(2) of the Family Law Rules, O. Reg. 114/99, as amended, provides that a party who wishes to change an agreement for support filed with the court under section 35 of the Family Law Act may do so only by way of Motion to Change Final Order under Rule 15. However, there is an exception where the party also wishes to make one or more related claims regarding issues not raised in the agreement, in which case Rule 8(2.1) provides that the request to change child support may be advanced in the context of an originating proceeding along with the other claims. Since the Applicant has also advanced originating claims respecting custody and access, she was entitled by Rule 8(2.1) to include her claims to change child support in her application rather than filing a Motion to Change child support.

[26] Family Law Rule 8(2.1) provides as follows,

Exception

8(2.1) … if a party who wants to ask the court to change a final order or agreement to which rule 15 applies also wants to make one or more related claims to which rule 15 does not apply, the party may file an application under subrule (1) to deal with the request for a change together with the related claim or claims and, in that case, subrules 15 (11) to (13) apply with necessary changes to the request.

[27] There is no application from the husband before this court dealing with possessory claims, occupation rent or his spousal support claim. Unlike the circumstances in Colt in which the court proceeded to deal only with the support issues as the rules intended, and dismissed those unavailable by statute, the husband in this case has added to his request to change claims which may only be made by application. This is not an uncommon practice but one which has led to courts to struggle with the juxtaposition of Rules 8 and 15. While there is no exception in Rule 15 similar to the exception found in Rule 8(2.1) which allows parties to a motion to change to bring related claims which must be started by application courts have adopted a flexible approach when that has been done, relying on Rule 2(2) which directs the court to deal with cases “justly” and, in particular, deal “with as many of the aspects of the case as possible on the same occasion”[^15].

[28] In Forbes v. Forbes[^16] the father brought a motion to change final Order child and spousal support and, later, an application for equalization and spousal support. After the equalization claim was dismissed, the two proceedings co-existed for several years until shortly before trial. Bondy J. was perplexed why the motion to change proceeding had not been abandoned once the application had been commenced. At the commencement of trial, the parties agreed that the motion to change would be withdrawn and that the application proceed pursuant to Rule 8(2.1). The child support analysis would be pursuant to s, 17 of the Divorce Act and the spousal support analysis pursuant to s. 15.2 of the Divorce Act.

[29] In Rifa v. Andrade[^17] the mother sought to change a final Order dealing with the father's access, and requested a restraining Order. Zisman J. noted that Rule 8 (2.1) was permissive in that it stated that a party may file a new application. Since the father was aware of the mother's request for a restraining Order, addressed it in his affidavit evidence and wanted all issues determined on their merits, the court relied on Rule 2(2) as “an appropriate process to avoid further delay and expense to the parties.”[^18]

[30] In McCall v. Res[^19] a mother sought to change an Order relating to custody and access. She also requested a restraining Order and that a parenting coordinator be appointed. Referring to the permissive, not mandatory, obligation in Rule 8(2.1) to file an application the court relied on Rule 2(2) to combine the issues “without regard to the formality of the pleadings themselves.” Neither party objected to the matter proceeding under the motion to change brought by the mother.[^20]

[31] In Linett v. Linett[^21], the Court of Appeal relied on Rule 1(8) and observed that a failure to comply with the Family Law Rules was an curable irregularity and did not render a proceeding, step or Order taken in a proceeding a nullity. The court could make any Order it considered necessary.

[32] Given the long and acrimonious history of the parties’ litigation it is, perhaps, not surprising that they have proceeded as if the trial before Douglas J. was simply another procedural step in their continuing battle. While Rule 15 was never intended to have engrafted on it the various claims now being made by the parties, it is clear that the court has the jurisdiction in appropriate circumstances and, if necessary, to determine in the aggregate the issues raised in the parties’ motions to change even if some of those claims should have been brought by application. It is unclear whether either party in these proceedings ever considered Rule 8(2.1).

Disposition

[33] The parties separated in early 2013 and have now spent almost 5 years litigating their disputes. The pleadings are chaotic and the Continuing Record a shambles. Seven judges of this court have been involved. The husband seeks the court’s assistance in circumstances where he has failed to obey the equalization payment judgment in the earlier proceedings between the parties, and not paid interest or costs. The financial security of the wife and children are at risk but there is, prima facie, credible evidence which may lead to a change being made to the final support Orders, and Orders being made relating to other claims not addressed at trial or which have arisen since then.

[34] The following is ordered:

(a) the husband’s motion to change is stayed until the earlier of his payment of the equalization judgment and costs, including pre and post-judgment interest, and November 30, 2017. This does not include anything on account of support arrears and is without prejudice their later quantification and enforcement. If the husband fails to fully comply with this term, the wife may move on or after December 1, 2017 on 10 days’ notice to dismiss the husband’s motion to change and for leave to proceed with her motion to change as an uncontested proceeding;

(b) if the husband complies with (a) he shall deliver his amended motion to change by no later than November 30, 2017 to include his claim for spousal support. The wife shall have 10 days thereafter to deliver her response to the amended pleading;

(c) pending the husband’s compliance with (a) above, the husband shall pay as and for child support $438 monthly starting October 1, 2017 with credit for payments from and after that date. Excepting enforcement of this amount, enforcement of the support Orders is otherwise suspended. If the husband fails to comply with (a) above, then the support payable shall revert to the amounts set out in the final Orders of Douglas J. dated June 16, 2016 (child support) and September 26, 2016 (spousal support), and shall be fully enforceable;

(d) if the husband complies with (a) above then, subject to the direction of the settlement conference judge otherwise, the wife shall bring a motion returnable not later than January 31, 2018 to determine whether she is entitled to possession of the parties’ former matrimonial home. If no such motion is brought, then the husband shall be entitled to possession of the home as of February 1, 2018 or as otherwise directed by the conference judge;

(e) the case conference scheduled before Douglas J. on December 18, 2017 is vacated. The settlement conference scheduled for January 8, 2018 before McGee J. shall proceed, peremptory to both parties. All issues as raised in the parties’ pleadings, as amended, shall be brought to the conference judge’s attention as required by the prescribed form. The parties are to comply with all settlement conference rules. In the event of the husband’s failure to comply with (a) above, this date shall be vacated, and the wife shall so advise the court office on or before December 2, 2017;

(f) no other motion may be brought by either party in these proceedings except with leave to be obtained pursuant to a 14B motion on 10 days’ notice to the other party, and subject to the direction otherwise by the conference judge, should a conference proceed.

[35] A Support Deduction Order shall issue.

[36] Reference was made in the wife’s evidence to the $408,850 cheque from the husband being held in a safety deposit box, subject to the court’s direction. Either it should be returned to the husband or the parties can negotiate whether, and to what extent, it can be applied to the husband’s debt.

[37] If the parties are unable to resolve the issue of costs, they shall file in the Continuing Record by November 30, 2017 their submissions limited to no more than three double-spaced pages. Offers to Settle, Bills of Costs and any authorities upon which either party may wish to rely shall be filed then too but not form part of the Record.

Justice D.A. Jarvis

Date: November 6, 2017

[^1]: In paragraph 173 of his Reasons, Douglas J. referred to the potential income available to the husband for support purposes relating to a rental unit in the home, observing that “…[w]hen the Respondent [the husband] resumes possession of the matrimonial home this summer, the Applicant’s position will no longer represent an impediment to this income stream”.

[^2]: When Douglas J. released his Reasons for Judgment on the financial issues on June 16, 2016, it did not appear then, nor does it now, that the custody and access issues had been finalized. The reference in the endorsement made by McGee on March 20, 2017 about the husband being entitled to bring a Motion to Change is not interpreted as endorsing any such proceeding but rather affirming his right to do so if wished.

[^3]: Although the husband’s Form 15 Motion dealt with the final child and spousal Order made June 16, 2016, it is the Order made on September 26, 2016 which modified the spousal support which the husband also seeks to change.

[^4]: Lauwers J.A. awarded the husband $1,500 costs of the motion in which the support payable by the husband was temporarily reduced pending his appeal being heard. Netted out against the costs later awarded to the wife by the Court of Appeal when it dismissed the husband’s appeal, the amount owed to the wife is $2,250 for the appeal.

[^5]: In her affidavit sworn on August 4, 2017 (para. 31) the wife claimed that the husband had paid only $12,725 of the $36,049 support ordered by Douglas J. based on his Orders of June 16, 2016 (child support) and September 26, 2017 (spousal support) leaving arrears of $23,324 as of that date.

[^6]: This is the teleconference with counsel on September 16, 2016.

[^7]: (1996), 1996 729 (ON CA), 20 R.F.L. (4th) 191 (Ont. C.A.)

[^8]: See fn #1

[^9]: See fn #3 above

[^10]: (2009), 2009 77491 (ON SC), 78 R.F.L. 95 (Ont. S.C.J.)

[^11]: Para. 6

[^12]: Para. 13

[^13]: Hunks v. Hunks, 2017 ONCA 247, para. [40]; Chechui v. Nieman, 2017 ONCA 669, paras, [67] and [68]

[^14]: 2017 ONSC 2232, 2017 CarswellOnt 5227 (Ont. S.C.J.)

[^15]: Rule 2(5)(f).

[^16]: 2016 ONSC 7407, 2016 CarswellOnt 21250 (Ont. S.C.J.)

[^17]: 2015 ONCJ 484, 2015 CarswellOnt 14240 (Ont. C.J.)

[^18]: Para. 107

[^19]: 2013 ONCJ 254, 2013 CarswellOnt 5865 (Ont. C.J.)

[^20]: Para. 24

[^21]: (2006) 2006 12956 (ON CA), 27 R.F.L. (6th) 247, [2006] O.J. No. 1622, 2006 CarswellOnt 2424 (Ont.C.A.)