COURT FILE NO.: 896/13

DATE: 2020-02-21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Andrew Marsden Applicant

– and –

Dianne Marsden Respondent

• and -

Nicole Lynn Marsden, Rosalind Marsden and Judy Cook Collateral Respondents

Counsel:

B. Purdon-McLellan, for the Applicant

B. Ludmer, for the Respondent

J. Beaton, for the Collateral Respondents

HEARD: February 19, 2020

ENDORSEMENT RE MOTION TO ADD COLLATERAL RESPONDENTS AS PARTIES

Kurz J.

1The Respondent mother, Dianne Marsden (“Dianne”), moves for an order adding Nicole Lynn Marsden (“Nicole”), Rosalind Marsden (“Rosalind”) and Judy Cook (“Judy”) (collectively “the Collateral Respondents”) as responding parties to this Motion to Change proceeding. Judy is the common law partner of the Applicant father, Andrew Marsden (“Andrew”). Nicole is his sister. Rosalind is his mother.

2The parties have been fighting over custody and access issues since they separated in 2013. In this proceeding, both the Respondent mother (“Dianne”) and Andrew seek to change the final order of Coats J. of April 15, 2015. In that order, Coats J. granted the parties joint custody of their two special needs children, K.M., born November 4, 1999 and J.M., born October 28, 2002 (collectively “the children”). K.M. is 20 years old while J.M. is 17. Coats J. ordered that the children primarily reside with Andrew but that Dianne exercise alternate weekend access. That access is to take place from Friday after school to Monday return to school and Wednesday from after school to 8:00 p.m.

3Among the relief that Dianne seeks is an order granting her greater parenting time with the children and greater decision making regarding them. Among the relief that Andrew seeks is an order that neither of the children is a child of the marriage and that no custody and access orders be made against them. He also seeks child support based on an imputed income for Dianne.

4If the Collateral Respondents are made parties, Dianne seeks to bind them to a final restraining order that limits their conduct towards the children.

5This is an extraordinarily high conflict case. Since the parties separated in 2013, they have filed 25 volumes of materials in the continuing record. The endorsement record encompasses two volumes. Numerous assessors and other professionals have attempted to assist the parties and children. Dianne has fiercely and consistently raised the issue of parental alienation against the Andrew. He denies the charge. He has been found by Miller J. of this court to be in contempt of various parenting orders and jailed for 15 days.

6Dianne’s claims that it is not just Andrew who is trying to turn the children against her, it is the Collateral Respondents as well. In two interim decisions, two different judges have agreed with her.

7For the reasons set out below, I order that the Collateral Respondents be added as responding parties to this proceeding. I do so only with regard to Dianne’s request for a restraining order against them. I find that their participation as parties is necessary in order to properly adjudicate this Motion to Change in a manner that meets the children’s best interests and the primary objective of the Family Law Rules (“FLR”).

8As the judge who will conduct the trial in March 2020, I wish to make clear that I am not making findings of fact with regard to any of the parties or pre-determining any issues that will be litigated before me. Any finding that I make in this motion about the presence of an air of reality to certain arguments is not a finding of fact for the trial. Rather, it is a recognition that previous findings of judges in interim motions leading to the trial lend an air of reality to certain concerns that Dianne raises. That is relevant only to my determination of the issues in this motion, not the trial. At trial, I will no more be bound by those findings than I would be any other findings in any other interim motions heard before trial.

Background

9The background to this matter is lengthy and complex. I do not propose to offer any more than the minimum number of facts necessary to offer context to this motion.

10Andrew and Dianne were married. They separated in 2013, when Dianne left the family home and went to a shelter, alleging abuse. They have two children, K.M. and J.M. Each is on the extreme end of the autism spectrum. Each operates at a low range of intellectual functioning, at about the one percentile for his group. On June 25, 2019, Miller J. found that K.M. remains a child of the marriage. Whether he is still a child of the marriage will be an issue for trial. At present, J.M. is a minor and he too is a child of the marriage. His continued status will be an issue at trial. Each child will be separately represented by counsel at the trial.

11At trial, this court will also have to consider whether Andrew has supported or undermined the children’s relationship with Dianne. That was the subject of a contempt motion brought before Miller J. in November 2017. On March 8, 2018, after a five-day trial, Miller J. found beyond a reasonable doubt that Andrew was in contempt of the final order of Coats J. and seven subsequent interim orders, many made on consent. Miller J. found that the contempt arose “…in respect of ensuring that the children attend for access, and to school and in respect of participation in the process necessary for a [Children’s Law Reform Act] s. 30 [custody and access] assessment.”

12Miller J. further found that Andrew had deprived K.M. of 52 full weekend days and 52 weekend evenings, which she found to be equivalent to 78 days of time with his mother. She added that Andrew deprived J.M. of an additional four weeks of summer access time with Dianne.

13Miller J. offered Andrew the opportunity to purge his contempt. He could have done so by complying with the terms of previous orders regarding Dianne’s parenting time, J.M.’s attendance at school and participation in a s. 30 assessment.

14On April 26, 2018 Miller J. found that Andrew had failed to purge his contempt, particularly with regard to Dianne’s access. She found that his conduct was “flagrant” and in violation of many orders. She found that the only appropriate penalty for that contempt was a period of 15 days’ imprisonment, to be served immediately. J.M. was to immediately go into and remain in the care of Dianne. Miller J. imposed further parenting terms and again left it to Andrew to purge his contempt by honouring certain other terms of her and other court orders.

15J.M.’s transition into Dianne’s care was anything but smooth. He refused to go into her care. Dianne argued that the Collateral Respondents assisted the incarcerated Andrew in resisting the changeover. Dianne moved for restraining and contempt orders against the Collateral Respondents and Andrew’s counsel. In granting an adjournment of that motion to allow those persons to respond to Dianne’s motion., Gray J. stated: “[t]here is little doubt that J.M.’s refusal to go with his mother has been strongly influenced by Mr. Marsden and probably by Mr. Marsden’s family.” Since the evidentiary standard in family proceedings is a balance of probabilities, Gray J.’s finding was that Andrew’s extended family strongly influenced J.M.’s refusal to join his mother after his father was jailed.

16By August 20, 2018, when Miller J. heard the contempt motion, Andrew was represented by new counsel, Mr. Mamo. At that time, Miller J. considered motions by Dianne for restraining orders against each of Andrew and the Collateral Respondents, as well as the request for a contempt finding against the Collateral Respondents.

17In her endorsement of September 4, 2018 regarding the Collateral Respondents, Miller J. made a number of critical findings against them. She refused to make a contempt finding against the Collateral Respondents because they were not parties bound to the previous orders in question. But she left no doubt that she would have found them in contempt if they had been parties.

18That being said, Miller J. found that it was appropriate to add the Collateral Respondents as parties to the motion before her in order to consider whether relief should be granted against them. She based that ruling on her finding of “…[t]he active involvement and interference of all three of the Collateral Respondents in the compliance with court orders, of which I am satisfied they were fully aware…” She added that the issue of the addition of the Collateral Respondents to the proceeding as a whole would have to await another day.

19Miller J. further found:

… on the evidence before me, that Nicole Marsden, in collusion with Judy Cook and Rosalind Marsden, knew of the court order, and deliberately took steps to interfere with Dianne Marsden’s court ordered access to J.M. Whether they did this on their own initiative or at the direction of Andrew Marsden I am unable to determine on the record before me.

20Miller J. stated the hope that:

It should now be crystal clear to each of the Collateral Respondents that if J.M. and/or K.M. is in their care they are required to comply with any court order directing that J.M. and/or K.M. is to be at school or in the care of their mother.

21In the circumstances, Miller J. found that it was appropriate and in J.M.’s best interests to make an interim restraining order, binding the Collateral Respondents. The order is effective until the disposition of the trial of this proceeding. The detailed terms of that restraining order were intended to ensure that the Collateral Respondents do not interfere with J.M.’s relationship with Dianne or his attendance at his school. The order granted did not adopt all of the terms requested by Dianne, some of which Miller J. found to be beyond her jurisdiction. She also ordered further terms against them under FLR r. 1(8), which deals with the consequences of a breach of a court order.

Issues

22This motion raises the following issues:

1. Does the court have the jurisdiction to add the Collateral Respondents as parties to this proceeding?

2. Do the Collateral Respondents meet the test for adding a party to a family law proceeding?

3. Are there procedural or practical reasons not to add the Collateral Respondents as parties at this late date?

Issue No. 1: Does the court have the jurisdiction to add the Collateral Respondents as parties to this proceeding?

23The court has the jurisdiction to grant a restraining order against non-parties in a proceeding that deals with children. That jurisdiction is set out in s. 35 of the Children’s Law Reform Act (“CLRA”) which reads as follows:

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.

Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant’s lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

[Emphasis added]

24In her interim decision, Miller J. correctly set out the principles that apply in regard to the granting of a restraining order as follows:

I agree with the summary of the law in respect of restraining orders as set out in Shawyer v. Shawyer [2016] O.J. No. 707 (S.C.J.) at paragraph 66, citing the decision of Starr J. in D.C. v. M.T.C., 2015 ONCJ 242 (Ont. C.J.) as follows:

…the general principles to be considered and applied when determining whether there are reasonable grounds for the person seeking the order to fear for her own safety or for the safety of his or her child or children, include the following:

(a) The onus is on the person asking for the restraining order on a balance of probabilities to convince the court that an order is required;

(b) As a general rule the court must approach the issue of whether to impose a restraining order with caution. The nature of an order is to restrict the freedom of movement and communication of a party. The sanctions for breaching such an order include possible imprisonment. Although the burden of proof is the civil test, the effect is quasi criminal in nature;

(c) A restraining order is not restricted to situations where the fear relates to physical safety. It can also include ongoing fear for one's psychological safety;

(d) 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;

(e) An applicant does not have to have an overwhelming fear that could be understood by almost everyone; on the other hand, the applicant's fear of harassment must not be entirely subjective, comprehended only by the applicant;

(f) There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words and a Court must be able to connect or associate a respondent's actions or words with an applicant's fears.

25Miller J. found that Dianne met the Shawyer test because, she found, Dianne had “… established a reasonable fear for the psychological safety of J.M. in respect of the Collateral Respondents’ behaviour in J.M.’s presence and in respect of K.M.…”. Without making any finding on the merits, that finding is at least available to a trial judge, if he makes the same factual findings after trial that Miller J. made in the motion before her.

26That being the case, the court has jurisdiction to add the Collateral Respondents as parties to this proceeding in regard to a request for a restraining order under FLR r. 7(5). Subrule 7(5) gives the court the explicit jurisdiction to add ‘any person” as a party to a family law proceeding. It states:

PARTY ADDED BY COURT ORDER

(5) The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.

27In determining who “should be a party” the court is guided in part by r. 7(3), which set out who should be named a party when a case begins. It states:

PERSONS WHO MUST BE NAMED AS PARTIES

(3) A person starting a case shall name,

(a) as an applicant, every person who makes a claim;

(b) as a respondent,

(i) every person against whom a claim is made, and

(ii) every other person who should be a party to enable the court to decide all the issues in the case.

28Here Dianne argues that she wishes to make a claim against the Collateral Respondents. She also says that they should be made parties in order to enable to court to decide all of the issues before it. The Collateral Respondents do not argue that, in light of the authorities above, the court cannot order them to be made responding parties. Rather they say that the court should not exercise its discretion to do so. They point out that they are not parents of the children and do not seek that role. Accordingly they should be left out of this litigation.

29The Collateral Respondents cite the following comments of McSorley J. of this court in Breen v. MacArthur, 2016 ONSC 2454, in support of that view:

The rule itself [i.e. r. 7(5)] provides no criteria or direction as to how the court should exercise its discretion. There can be no doubt that the court has the discretion to add persons as parties to a case. However, that discretion should be used sparingly and only when necessary for the just determination of the litigation. [Emphasis added]

30I will consider that argument in light of the test for adding parties, which is the subject of the next issue before the court.

Issue No 2: Do the Collateral Respondents meet the test for adding a party to family law proceeding?

31The test for granting an order under r. 7(5) in the context of a non-child protection family law proceeding is set out by Mitrow J. at para. 32 of Worrall v. Worrall, 2012 ONSC 4388, as follows:

32 By way of summary, the following criteria, which are not exhaustive, can be applied to determine when a person should be added as a party pursuant to sub-rule 7(5) of the Family Law Rules:

a. is the person a "necessary" party to determine all issues in the case;

b. in determining "necessity", it will be unlikely that necessity can be established if the proposed party has no "legal interest" in the case, meaning that no order can be made for or against, the proposed party;

c. in a circumstance or a proposed party has no legal interest in the case, the court may exercise his discretion to add the proposed party in situations (in this list is not meant to be exhaustive) where there are unusual facts, there is evidence of some collusion between the parties in the matrimonial proceeding or the case is egregious. The exercise of the discretion to had parties in the circumstances should be exercised very sparingly.

(see also Reeves v. Cooper, [2018] O.J. No. 6293 at para. 28)

32In support of her motion, Dianne cites a series of cases¹ where parties were added because a spouse and a relative or new partner have intertwined their financial affairs in such a matter that the court cannot determine the spouse’s financial affairs without including the added party That is not the case here. Dianne has not cited any cases analogous to this one.

33For their part, the Collateral Respondents rely in large measure on Breen v. MacArthur, cited above. In that case, McSorley J. distinguished between adding a party for the purposes of a motion under r. 14(3) (as Miller J. did for the Collateral Respondents) and for the larger proceeding. In Breen, Ms. Breen’s common law partner could be added as a party to a motion for an interim restraining order but not in the main proceeding. But the partner did not have an interest in the proceedings other than supporting Ms. Breen. In fact, McSorley J. made a finding that the request to add a party was made in bad faith and to financially drain the resources of Ms. Breen and her partner.

34As set out above, McSorley J. also reasonably pointed out that adding a party to a family law proceeding should not be a matter of course. It should be exceptional. To do otherwise would increase costs, complexity, and the length of a proceeding. It would also unnecessarily increase discord between former spouses. In the case before her, McSorley J. found that adding Ms. Breen’s partner “…will not assist the court in deciding the issues that are important for the best interests of the children.”(para. 43). Ms. Breen’s partner played only a supportive role to her.

35The Collateral Parties say that their role, like the partner in Breen, is supportive only and that they would add nothing to the proceeding. They add that they are scheduled to testify in any event. So, their evidence will be before the court, whether or not they are made parties.

36The Collateral Respondents further argue that the only exception to their supportive role was limited to the two-week period when Andrew was incarcerated. Miller J. found that each of them assumed a parental role over J.M. during that period. The Collateral Respondents counter that they had no counsel during that period. They did not know how to deal with a recalcitrant J.M., who was resisting contact with his mother. They have now taken Miller J.’s admonitions to heart, recognized their errors at that time and have changed their ways. They have not violated or participated in violating any orders since Miller J. made her interim order against them.

37Normally that argument would suffice to keep them out of this litigation. But that is not the case here. Again, without making findings of fact, there is at least an air of reality to Dianne’s claim that the role of the Collateral Respondents has been and remains more than that of a support for Andrew. Two different judges have found that they played a role in thwarting Dianne’s relationship with J.M. Neither judge limited his or her findings to a two-week period. Miller J. even found that it was in J.M.’s best interests to make a detailed mandatory order proscribing certain future conduct of the Collateral Respondents towards J.M. Those terms were meant to apply indefinitely, until trial.

38I recognize that I am not bound by those findings and may, on a fuller evidentiary record, reject them. But for the purpose of this motion only, I cannot make the same finding regarding the Collateral Respondents that McSorley J. made in regard to Ms. Breen’s partner.

39In considering Mitrow J.’s three “Worrall” factors, I find that:

a. The Collateral Respondents are "necessary" parties to this proceeding, in light of the role they are alleged to have played in influencing J.M. against Dianne. That alleged role is not a merely supportive one. The allegation is that they played an active role in that regard.

b. The Collateral Respondents have a "legal interest" in this case, because Dianne is seeking to bind them to terms similar to those that were imposed on them by Miller J. on September 4, 2018.

c. Even if Dianne’s request for an order against them does not confer a “legal interest” in this proceeding, this is an exceptional case where I find it appropriate to exercise my discretion in any event. I say this because:

1. This is a case with an exceptionally high level of conflict.

2. It is one in which the extended families of the parties have historically played an active role.

3. It is not disputed that the Collateral Respondents acted inappropriately in keeping J.M. from his mother when his father was incarcerated. As their counsel wrote in her factum for this motion: “[t]hey understand that their behaviour [during that two-week period of Andrew’s incarceration] contributed to the conflict and were not in K.M. or J.M.’s best interests. They understand that their behaviour was fueled by frustration with the situation and was unproductive.”

4. It is worth noting that in his contempt proceedings, Andrew argued that he has no control over the Collateral Respondents. So an order against him will not bind them.

5. Unless they are made parties, the Collateral Respondents’ promises to be “compliant” in the future are not binding. For the court to order that compliance if it sees fit to do so, they must be parties.

6. Miller J. found evidence of “collusion” between Andrew and the Collateral Respondents, although all of them deny that that is the case.

7. The alleged facts of this case are, in Mitrow J.’s words “egregious”. The allegation is one of extreme parental alienation that is abetted by the paternal extended family.

8. Dianne’s alleges that the problematic conduct of the Collateral Respondents is not limited to the two-week period of Andrew’s incarceration. That is of course an issue for trial. But again, the findings of two previous judges show that those claims, whether or not accurate, must be considered.

Issue No. 3: Are there procedural or practical reasons not to add the Collateral Respondents as parties at this late date?

40This motion is heard at a date that is less than six weeks before the commencement of the scheduled four-week trial. The Collateral Respondents say that:

• they have insufficient time to prepare for the trial,

• their counsel is not available for the trial,

• they may wish to engage in questioning of Dianne,

• the lengthy trial will be costly and inconvenient to them,

• it could adversely affect their employment.

All those reasons deserve the court’s consideration.

41Dianne’s counsel responds that she has tried to bring this motion since 2018. In fact, on May 31, 2018, I adjourned an earlier version of this motion to a date after Miller J. ruled. I directed the parties to select a date before me for a continuation of the motion, after Miller J. granted her decision in the interim motion. Mr. Ludmer complains that the Collateral Respondents and their counsel delayed in responding to his entreaties to set a new date for this motion. A review of the correspondence between counsel shows, at a minimum, that Mr. Ludmer had attempted to bring this motion forward since 2018. The delays in bringing this motion forward cannot be laid exclusively, if at all, at Dianne’s feet.

42Dianne has also made clear that if she does not succeed in this motion, that will not be the end of it. She will commence a separate proceeding for a restraining order against the Collateral Respondents because she believes that only an order like that of Miller J. will ensure her contact with J.M. I cannot say whether I agree but I must consider that submission in light of the issue of primary objective of the FLR and the court’s duty to manage cases to meet that objective.

43Under r. 2(2), the primary objective of the FLR is to deal with cases justly. The notion of dealing with cases justly includes the following considerations set out in r. 2(3):

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

44Under r. 2(4) this court is required to apply the FLR to promote their primary objective. Under r. 2(5), it does so through active case management, which includes controlling the progress of a case, considering whether the likely benefits of a step justify the cost, and dealing with as many of the aspects of the case as possible on the same occasion.

45Clearly, fairness, proportionality and reasonableness are keystone values in dealing with a case justly.

46Here, I find that the procedural and practical objections raised by the Collateral Respondents are not sufficient to reject Dianne’s motion to add them as parties. I say this for a number of reasons. First and perhaps most importantly, it is in the best interests of both children to resolve this case as expeditiously as possible. They have been embroiled in litigation for well over seven years. It shows no sign of abatement. The best thing that can be done for the benefit of the children is to have all of their parenting issues determined at one time and in one proceeding. It would do no one any good to effectively bifurcate the issues raised by the parties into two separate proceedings when the same set of facts would apply to each. Such a process would involve great delay, cost and repetition. It would also embroil the children in greater conflict and confusion.

47Second, the Collateral parties are not taken by surprise by this motion or the date of this trial. As stated above, it has been on the table for well over a year and a half. Nothing in the manner in which this litigation has been conducted, with its 25 volumes of the continuing record and two volumes of endorsements, should give the impression that the full volume of this litigation or its issues have been attenuated.

48I add that Ms. Beaton candidly advised the court that she has been retained by the Collateral Respondents since 2018. So she is not taken by surprise by this impending trial. If she has chosen to book another trial for this time, that is a matter between her and her clients. I note that she is a member of a very well-respected law firm. Her firm boasts a number of very capable counsel.

49If Ms. Beaton wishes to question Dianne on behalf of the Collateral Respondents, I give my leave to do so. If the parties cannot agree on the terms of that questioning, they may arrange a conference call or an appearance before me.

50While it is their choice, it may not be necessary for each of the Collateral Respondents or even their counsel to attend trial every day. Much of the relief sought in this proceeding is between Andrew and Dianne. The issue that involves them is whether a restraining order should be made against them. As they pointed out, they will testify in any event.

51With regard to the cost and length of the trial, I am aware that there will be five sets of counsel at trial (one for each child). But the parties have four weeks or approximately 100 hours of court time. I expect them to use that time judiciously and economically.

52Mr. Ludmer has offered, and none of the counsel before me in this motion have demurred, to put in all of his client’s evidence in chief by affidavit. He also agrees to a “stopwatch trial” in which each party will have a limited period of time to examine witnesses, make submissions, make objections and the like. I am very open to that suggestion and intend to closely manage the process and timing of this trial. As stated above, I believe that one trial at this time is better than two spread out over a period of time.

53With regard to the personal circumstances of the Collateral Respondents, many litigants face those hardships. With respect, they raise no extraordinary circumstances. They would face the same hardships and perhaps more if and when Dianne brings a separate application against them. I also point out that each of the Collateral Respondents need not attend each day of trial Further, if so instructed, their counsel could decide to work cooperatively with counsel, in order to avoid the requirement of her attendance at court each day.

Order

54For all the reasons set out above, I order as follows:

1. The Collateral Respondents are added as respondent parties to this Motion to Change proceeding for the limited purpose of responding to Dianne’s request for a restraining order against them.

2. Dianne shall serve her amended Motion to Change pleadings upon Ms. Beaton and counsel for the other parties and children by February 24, 2020.

3. The Collateral Respondents (and if he wishes, Andrew) shall serve and file their responding materials by March 9, 2020.

4. Dianne may serve and file any reply by March 11, 2020.

5. The Collateral Respondents may question Dianne at a date and place agreed upon by the parties. If they do not agree otherwise, the questioning will be for a half day. If there are any issues in regard to the questioning, the parties who cannot agree on the terms of the questioning may arrange a conference call or attendance before me to resolve those issues.

6. The contours of the trial will be determined at the case management conference scheduled before me for March 2, 2020 at 11:00 a.m.

7. This endorsement shall be provided to counsel for each child, Ms. Fareen Jamal for K.M. and Mr. Gil Kay for J.M.

8. The costs of this motion are reserved to the completion of the trial.

KURZ J.

Released: February 21, 2020

Marsden v. Marsden, 2020 ONSC 1166

COURT FILE NO.: 896/13

DATE: 20200221

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Andrew Marsden Applicant

– and –

Dianne Marsden Respondent

• and -

Nicole Lynn Marsden, Rosalind Marsden and Judy Cook Collateral Respondents

ENDORSEMENT RE MOTION TO ADD COLLATERAL RESPONDENTS AS PARTIES

KURZ J.

Released: February 21, 2020

Footnotes

1. 1Coulstring v. Lacroix, 2001 CarswellOnt 1650 (Ont. S.C.), Pabla v. Lalri, 2014 ONSC 2088, Stainton v. Stainton, 2000 CarswellOnt 426 (Ont. S.C.) and Boris v. Boris, 2005 CarswellOnt 975 (Ont. S.C.)).