Abu-Saud v. Abu-Saud et al., 2023 ONSC 6199

COURT FILE NO.: CV-603/20

DATE: 2023/11/01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AMNEH TAWFIC ABU-SAUD, Plaintiff

AND:

AZAM ASAAD ABU-SAUD and HEKMATH H.A. AL TOUHOUL, Defendants

BEFORE: Justice I.F. Leach

COUNSEL: Qasim Kareemi, for the Plaintiff

The defendant Azam Abu-Saud not participating

The defendant Hekmath Al Touhoul self-representing

HEARD: July 27, 2023

ENDORSEMENT

[1] Before me is a motion by one of the two named defendants to this action, (the self-representing Ms Al Touhoul), for an order discharging a certificate of pending litigation (“CPL”) obtained by the plaintiff herein and registered against a home shared by the defendants.[^1]

[2] For the reasons outlined below, in my view the request for an Order discharging the relevant CPL must be denied.

Further background

[3] The material filed in relation to Ms Al Touhoul’s motion was voluminous, including not only motion records, facta and books of authorities, but transcripts of extended cross-examination of Ms Al Touhoul and the plaintiff Mrs Abu-Saud on their respective affidavits.

[4] The motion also was the subject of more than six hours of extended oral argument before me on July 27, 2023.

[5] I have spent considerable time reviewing and reflecting on all of that material and oral argument, and the extended but necessarily truncated summary that follows, of the underlying developments leading to the special appointment hearing before me, should not suggest otherwise.

[6] I also will have more to say about the underlying facts during the course of my analysis below.

[7] With those caveats in mind, I think it appropriate for now to start with an overview of litigation developments and other matters emphasized in the plaintiff’s responding motion material, the most salient points of which were documented and/or not seriously disputed, and which in my view frame and provide context for the subsequent and/or supervening developments alleged and relied upon by Ms Al Touhoul in support of her motion.

[8] Those litigation developments and other matters include the following:

a. The plaintiff Mrs Abu-Saud and the defendant Mr Abu-Saud had a longstanding marriage which ended, after approximately 27 years, with their separation in February of 2015 and Mrs Abu-Saud’s commencement of divorce proceedings thereafter. In particular, Mrs Abu-Saud filed an Amended Divorce Application in April of 2016, seeking a divorce and ancillary relief that included claims for spousal support and equalization of the spouses’ net family property.

b. Mr Abu-Saud delivered an Answer in response to that divorce application filed by Mrs Abu-Saud, and the matrimonial litigation thereafter moved forward in a very contentious way, characterized by Mr Abu-Saud repeatedly refusing to consent to various matters, in turn obliging Mrs Abu-Saud to bring numerous interlocutory motions.

c. The matrimonial litigation between Mrs Abu-Saud and Mr Abu-Saud proceeded to a five-day trial in November of 2018, following which Justice Carey reserved his decision.

d. On September 5, 2019, (i.e., following completion of the trial between Mrs Abu-Saud and Mr Abu-Saud but prior to the release of Justice Carey’s decision and judgment in that regard), Mr Abu-Saud and his new spouse Ms Al Touhoul jointly purchased a residential condominium property identified by its municipal address as Unit 20, 1571 Coronation Drive, here in the city of London. At the time, the property had a value of $455,000. It seems undisputed, (and undisputable), that $200,000.00 of the funds used to purchase that condominium property were withdrawn from Mr Abu-Saud’s financial interest in Superstar Investments Corp.; a corporation created by Mr Abu-Saud in 1996, through which Mr Abu-Saud provided services as a registered financial advisor.

e. The initial matrimonial litigation between Mrs Abu-Saud and Mr Abu-Saud culminated with Justice Carey’s release of a trial judgment on October 30, 2019. For reasons outlined by Justice Carey:

i. Mr Abu-Saud was ordered to pay Mrs Abu-Saud prospective spousal support in the amount of $2,653 per month, based on imputed income and other verified income received via disability benefits from the Canada Pension Plan, and with that monthly spousal support to be increased annually by an indexing factor equated to the percentage change in the Consumer Price Index for Canada.

ii. Mr Abu-Saud also was ordered to pay Mrs Abu-Saud a total of $94,305 in retrospective spousal support, payable at a minimum rate of $500 per month.

iii. In addition to the aforesaid payments relating to spousal support, Mr Abu-Saud was ordered to pay Mrs Abu-Saud a further $278,316.85, together with pre-judgment interest on that amount, to satisfy the balance of his net family property equalization obligation owed to Mrs Abu-Saud; i.e., insofar as his total obligation in that regard had been quantified at $371,640.44, but had been partly satisfied by Mrs Abu-Saud receiving a total of $93,236.54 from sale proceeds generated by disposition of the couple’s matrimonial home. In relation to Mr Abu-Saud’s remaining equalization obligation of $278,316.85, Justice Carey ordered that Mr Abu-Saud was to pay half that amount by April 30, 2019, with the remainder to be paid by way of equal annual instalments, with interest thereon commencing in January of 2020 and continuing until January of 2029.

iv. Justice Carey specifically ordered that Mr Abu-Saud’s aforesaid obligations to pay Mrs Abu-Saud spousal support, retroactive spousal support and equalization were to be secured against Mr Abu-Saud’s interest in Superstar Investments Corp., with Mr Abu-Saud also being ordered to forthwith notify Mrs Abu-Saud in writing of any intention to dispose of his shares in Superstar Investments Corp.

f. Following the release of Justice Carey’s judgment on October 30, 2019:

i. On November 5, 2019, (i.e., six days after release of that judgment), Mr Abu-Saud transferred his 50 percent interest in the aforesaid Coronation Drive condominium unit to Ms Al Touhoul. The stated consideration for that transfer was just $2.00, even though the property had been valued at $455,000 just two months earlier. Moreover, the transfer of Mr Abu-Saud’s formal ownership interest in the property to Ms Al Touhoul was not accompanied by any transfer to her of the registered mortgage debt Mr Abu-Saud owed in relation to the property. Furthermore, notwithstanding the formal transfer of his ownership interest in the condominium to Ms Al Touhoul, Mr Abu-Saud continued to reside in that condominium with Ms Al Touhoul.

ii. Mr Abu-Saud refused to pay the spousal support ordered by Justice Carey. In particular:

1. Instead of paying the prospective monthly spousal support of $2,653 ordered by Justice Carey, Mr Abu-Saud initially continued to pay Mrs Abu-Saud just $1,500 per month; i.e., the amount of interim spousal support he had been paying pursuant to an interim court order. That refusal by Mr Abu-Saud to comply with Justice Carey’s judgment regarding ongoing spousal support would become more egregious over time. For example, in January of 2020, Mr Abu-Saud arbitrarily would reduce his monthly payment of spousal support to Mrs Abu-Saud even further; i.e., to just $1,100 per month. In October of 2020, in a similar unilateral fashion, he then would reduce his monthly spousal support payments to Mrs Abu-Saud still further; i.e., to just $800.00 per month. By November of 2021, he would pay just $600.00 to Mrs Abu-Saud in the way of monthly spousal support.[^2]

2. Mr Abu-Saud also declined to pay anything in relation to the arrears of spousal support quantified by Justice Carey.

iii. On November 20, 2019, Mr Abu-Saud delivered a Notice of Appeal in relation to Justice Carey’s trial judgment; i.e., appealing that judgment to the Court of Appeal, and requesting a variation and reduction of the obligations ordered by Justice Carey. Formal commencement of that appeal resulted in an automatic stay of the equalization payments ordered by Justice Carey, but not the payment of prospective support or support arrears which Justice Carey also had ordered.[^3]

iv. On March 16, 2020, Mrs Abu-Saud’s lawyer learned, (through an email sent by Monarch Wealth Corporation, which managed the financial account for Superstar Investments Corp.), that Mr Abu-Saud had managed to redeem and thereby remove 100 percent of his financial holdings from the company’s account. In particular, although Monarch Wealth Corporation had “frozen” the relevant account in accordance with earlier correspondence from Mrs Abu-Saud’s lawyer, (i.e., reflecting the provisions of Justice Carey’s judgment directing that Mr Abu-Saud’s ordered support and equalization obligations be secured by Mr Abu-Saud’s financial interest in Superstar Investments Corp.), Mr Abu-Saud effectively had by-passed those restrictions by communicating directly with the relative underlying company holding the fund assets without the knowledge or approval of Monarch Wealth Corporation, in violation of the latter’s stipulated policies and procedures in that regard.

g. After learning that Mr Abu-Saud had transferred his formal ownership in the Coronation Drive condominium to Ms Al Touhoul, and that Mr Abu-Saud also had managed to remove all of his financial interest from Superstar Investments Corp., (effectively depriving Mrs Abu-Saud of the security she was to have had, pursuant to Justice Carey’s judgment, to ensure satisfaction of Mr Abu-Saud’s support and equalization obligations owed to Mrs Abu-Saud), Mrs Abu-Saud initiated this action on or about March 13, 2020. In her statement of claim herein, the plaintiff Mrs Abu-Saud:

i. named both Mr Abu-Saud and Mrs Al Touhoul as defendants;

ii. relying in part on provisions of the Fraudulent Conveyances Act, R.S.O. 1990, c.C.43, formally requested an order setting aside Mr Abu-Saud’s aforesaid transfer of his formal ownership in the relevant condominium property to Ms Al Touhoul, and restoring title in that property to the joint ownership of Mr Abu-Saud and Mrs Al Touhoul, on the basis the transfer was a fraudulent conveyance undertaken with the intent to defeat Mrs Abu-Saud’s entitlement to spousal support and equalization from Mr Abu-Saud; and

iii. formally requested, (in a manner accompanied by a formal legal description of the condominium property sufficient for registration purposes), an order directing that a corresponding CPL be issued against the relevant condominium property.

h. Shortly after issuing her statement of claim herein, the plaintiff Mrs Abu-Saud brought an ex parte motion in writing, pursuant to Rules 42.01(3) and 37.12.1 of the Rules of Civil Procedure, seeking her requested order for a CPL to be issued against the relevant condominium property. On March 19, 2020, that motion in writing came before Justice Grace, who granted the relief being sought. Justice Grace’s endorsement in that regard, dated March 19, 2020, speaks for itself. For present purposes, however, I note the following:

i. Justice Grace noted that the plaintiff’s motion in writing had been brought in the midst of the COVID-19 crisis, when operations of this court necessarily had been suspended apart from the hearing of urgent matters, and the London courthouse itself had been closed completely owing to a confirmed COVID-19 diagnosis in relation to someone who had been working on-site in the building.

ii. Justice Grace noted the litigation history between the plaintiff Mrs Abu-Saud and the defendant Mr Abu-Saud, including the relief ordered by Justice Carey’s judgment, and the appeal Mr Abu-Saud had commenced in the Court of Appeal to set aside or vary that judgment. Although the relevant notice of appeal had not been included in the plaintiff’s motion material, Justice Grace noted that Mr Abu-Saud’s filing of that notice of appeal had stayed the equalization payment directed by Justice Carey, but not the support orders made by Justice Carey; something expressly conceded by the plaintiff Mrs Abu-Saud. In that regard, Justice Grace also noted the information provided by the plaintiff, indicating that Mr Abu-Saud was failing to fulfil those spousal support obligations.

iii. After describing provided details of the defendant Mr Abu-Saud’s transfer of his formal ownership interest in the relevant condominium property to the defendant Ms Al Touhoul, and noting provisions of the Fraudulent Conveyances Act relied upon by the plaintiff Mrs Abu-Saud, (e.g., as set forth in section 2 of that legislation, providing that every conveyance of real property made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits and debts is void against such persons and their assigns), Justice Grace indicated he was satisfied:

1. that the plaintiff had standing to commence an action pursuant to the Fraudulent Conveyances Act, supra;

2. that the nature and timing of the relevant transfer of Mr Abu-Saud’s formal interest in the condominium property raised, on its face, a significant concern that the transfer occurred in circumstances engaging section 2 of the Fraudulent Conveyances Act, supra; and

3. that the requested CPL should issue, as Mrs Abu-Saud had established a reasonable claim to an interest in the relevant property.

iv. Despite signing the plaintiff’s draft order and directing that it be issued, Justice Grace also expressly recognized that, having regard to the current emergency measures taken by the court in response to the COVID-19 crisis, including the temporary closure of the London courthouse, it was unknown when the steps necessary to register the CPL against title to the condominium property could occur. In the circumstances, Justice Grace expressly made the following further order: “No steps shall be taken by or on behalf of the defendants or either of them to deal with the property in any manner whatsoever before the registration of the CPL without further order of the court or the written consent of the parties”.[^4]

i. On March 23, 2020, (i.e., four days after Justice Grace had addressed the plaintiff Mrs Abu-Saud’s ex parte motion requesting a CPL in relation to the condominium property, and had granted the relief requested in that regard), counsel for the plaintiff Mrs Abu-Saud served, on both defendants, the plaintiff’s statement of claim herein, as well as the plaintiff’s CPL-related notice of motion and motion record, the aforesaid endorsement of Justice Grace dated March 19, 2020, and the corresponding issued and entered Order of that date granting the CPL requested by the plaintiff. That was done by way of personal service of separate packages of that material addressed separately to each defendant; i.e., such that Ms Touhoul received all of that material on March 23, 2020.[^5]

j. On April 9, 2020, Mrs Abu-Saud brought a motion in the Court of Appeal requesting a stay of Mr Abu-Saud’s appeal of the trial judgment rendered by Justice Carey, and/or an order requiring Mr Abu-Saud to post security for costs in that regard, owing to Mr Abu-Saud’s ongoing failure to comply with the provisions of Justice Carey’s judgment which had not been stayed.

k. On May 7, 2020, following his receipt and consideration of written cost submissions in relation to the matrimonial litigation between Mrs Abu-Saud and Mr Abu-Saud, Justice Carey released a cost decision ordering Mr Abu-Saud to pay Mrs Abu-Saud a further $40,000 in fees and $7,500 for disbursements plus applicable HST, payable within 30 days.

l. On May 22, 2020, for reasons that included emphasis on the fact that compliance with a support order was not optional, characterization of Mr Abu-Saud’s breach of Justice Carey’s as “flagrant”, and noting of Mr Abu-Saud’s indication that he had the resources to comply with Justice Carey’s judgment, Justice Benotto of the Court of Appeal made an order whereby, amongst other things:

i. Mr Abu-Saud was directed to comply with the support provisions of Justice Carey’s judgment, including the bringing of his support payments up to date via a payment of $17,071.00, to be paid to Mrs Abu-Saud no later than June 19, 2020;

ii. Mr Abu-Saud was directed to make an additional payment of $28,724.34 plus prejudgment interest to Mrs Abu-Saud no later than June 19, 2020, apparently in partial satisfaction of the total equalization payment directed by Justice Carey’s judgment;

iii. Mr Abu-Saud’s appeal from Justice Carey’s judgment was stayed pending Mr Abu-Saud’s compliance with the order made by Justice Benotto;

iv. in the event Mr Abu-Saud failed to comply with the order thus made by Justice Benotto, Mrs Abu-Saud was granted leave to apply to a panel of the Court of Appeal for an order quashing Mr Abu-Saud’s appeal; and

v. Mr Abu-Saud was ordered to pay Mrs Abu-Saud a further $3,500.00 in costs, in relation to the above aspects of her motion in the Court of Appeal.

m. On June 12, 2020, Justice Benotto of the Court of Appeal then made a further order in response to Mrs Abu-Saud’s motion whereby, amongst other things:

i. Mr Abu-Saud was ordered to post security for costs in relation to his appeal, in the amount of $20,000, with such security for costs to be posted no later than July 15, 2020;

ii. in the event Mr Abu-Saud failed to comply with the further order thus made by Justice Benotto, Mrs Abu-Saud was granted leave to move for dismissal of Mr Abu-Saud’s appeal; and

iii. Mr Abu-Saud was ordered to pay Mrs Abu-Saud a further $1,500.00 in costs, in relation to the above aspects of her motion in the Court of Appeal.

n. Mr Abu-Saud thereafter paid the amounts required by Justice Benotto’s two orders, thereby effectively lifting the stay imposed on his appeal. However, within weeks of doing so and achieving that result, (i.e., a lifting of the stay), Mr Abu-Saud once again unilaterally reduced the amount of his monthly support payments to Mrs Abu-Saud, thereby resuming his non-compliance with Justice Carey’s judgment.

o. On November 23, 2020, counsel for Mrs Abu-Saud brought a further motion on her behalf in the Court of Appeal, drawing the Court of Appeal’s attention to Mr Abu-Saud’s further noncompliance with Justice Carey’s judgment, and asking for an order quashing Mr Abu-Saud’s appeal from that judgment. That motion was scheduled for hearing by a panel of the Court of Appeal on December 11, 2023. Rather than make any further attempts at compliance with Justice Carey’s judgment, (or the provisions of Justice Benotto’s order of May 22, 2023, directing Mr Abu-Saud to comply with the support provisions of Justice Carey’s judgment), Mr Abu-Saud chose to prepare a cross-motion asking the Court of Appeal to stay the provisions of Justice Carey’s judgment; a cross-motion he attempted to file in the Court of Appeal only “at the eleventh hour”.

p. On December 11, 2020, a panel of the Court of Appeal indicated immediately after the conclusion of submissions that, for reasons to follow, Mr Abu-Saud’s appeal of Justice Carey’s judgment was quashed with costs to Mrs Abu-Saud. In those subsequently released “Reasons for Decision”, the panel noted that a review of the relevant factual and procedural chronology of the matrimonial litigation between Mrs Abu-Saud and Mr Abu-Saud clearly demonstrated that Mr Abu-Saud had “deliberately undertaken, without lawful justification”, whatever steps he could to avoid his support obligations to Mrs Abu-Saud, and that Mr Abu-Saud had never willingly nor voluntarily paid any support to his former spouse. After noting the motion proceedings in the Court of Appeal and their result, as well as Mr Abu-Saud’s further non-compliance with his court ordered obligations thereafter, the panel confirmed that Mr Abu-Saud’s appeal of Justice Carey’s order was quashed and, amongst other things, ordered Mr Abu-Saud to pay costs of the appeal and motion to quash on a full indemnity basis, (totalling $38,419.90), while also making an order precluding Mr Abu-Saud from bringing any further proceeding before the Court of Appeal until he had complied with Justice Carey’s judgment and the Court of Appeal’s orders, including Mr Abu-Saud’s payment of the various cost orders that had been made and his ongoing support obligations. In my view, the following extended quotation of comments made by the panel, during the course of its reasons, is necessary and appropriate to convey a full sense of its findings concerning the dynamics underlying and characterizing the matrimonial litigation between Mrs Abu-Saud and Mr Abu-Saud:

Mr Abu-Saud has admittedly, unabashedly and, in our view, unjustifiably, breached the trial judge’s order and this court’s orders. He has always been represented by counsel. He has never expressed confusion about what the court orders mean or what is required of him. Other than very recently when faced with the present motion to quash his appeal, he has never attempted to stay the trial judgment. He has breached court orders with the certain knowledge that Mrs Abu-Saud is disabled, unable to work, and in dire financial straits that are exacerbated by these proceedings and his failure to comply with court orders. According to Mrs Abu-Saud, as of December 1, 2020, the spousal support and retroactive spousal support arrears totalled $23,901. This is an enormous sum for Mrs Abu-Saud. We draw the inescapable conclusion that Mr Abu-Saud just chooses not to pay the amount of court-ordered spousal support to Mrs Abu-Saud because he simply does not want to do so.

Mr Abu-Saud’s continued refrain of impecuniosity, rejected by the trial judge, Benotto J.A., and repeated again here, rings hollow. It stands sharply contradicted by the trial judge’s findings about his imputed income, as well as the financial documentation produced in these proceedings, his admissions concerning his assets, and his substantial withdrawal of his assets to further his lifestyle with his new spouse, [Ms Al Touhoul], which serves to dilute Mrs Abu-Saud’s security for his payment of support in further breach of the trial judgment. We also note that instead of satisfying his court-ordered obligations to his former spouse, he appears to be engaged in income-splitting with his new spouse [Ms Al Touhoul] by initially paying her $500 per week and then $480 bi-weekly for ostensibly providing undocumented and unsubstantiated services to his business. He also revealed that he has instigated a motion to vary the court-ordered support, alleging a material change in his means and circumstances, which is returnable before the Superior Court of Justice in February 2021.

Mr Abu-Saud is inexcusably in breach of court orders that he pay spousal support to his former wife. He has doggedly and undeniably chosen to thumb his nose at court orders. We condemn his behaviour in the strongest terms.

[Emphasis added.]

q. Mr Abu-Saud’s motion to change Justice Cary’s judgment, (mentioned by the Court of Appeal in the panel comments noted above), was commenced by Mr Abu-Saud in December of 2020, while his appeal before the Court of Appeal was still pending.

r. On January 8, 2021, the CPL obtained by Mrs Abu Saud on March 19, 2020, finally was formally registered against title to the relevant Coronation Drive condominium property.

s. On April 1, 2021, Mrs Abu-Saud brought a motion to dismiss or stay that motion to change brought by Mr Abu-Saud, based on Mr Abu-Saud’s non-compliance with Justice Carey’s judgment, Justice Carey’s order regarding costs, and the cost order made by the Court of Appeal on December 11, 2020.

t. On April 21, 2021, Mrs Abu-Saud’s motion to dismiss or stay Mr Abu-Saud’s motion to change was argued before Justice Hebner on April 21, 2021, who reserved her decision.

u. On June 23, 2021, Justice Hebner made an order staying Mr Abu-Saud’s motion to change Justice Carey’s judgment until Mr Abu-Saud had paid Mrs Abu-Saud the amount of $242,525.00, (i.e., an amount sufficient to bring himself into compliance with his court ordered obligations as of April 1, 2021), and indicating that Mr Abu-Saud otherwise would not be entitled to any further order from the court, unless the court ordered otherwise. Comments made by Justice Hebner, in the course of her extended reasons for making that Order, included the following:

The respondent asserts that he was married to his current spouse in the UAE and entered into a contract that he would purchase her a home. It was for that reason that he pulled the monies out of Superstar to purchase his home. [Mr Abu-Saud’s counsel] Mr Granger was unable to provide an explanation as to why the home was transferred to the respondent’s wife after the trial judgment was released. He concedes that the respondent [Mr Abu-Saud] did not help his case by taking that step. …

In my view, the respondent’s submission that the trial judgment was unfair is immaterial. He brought his appeal, which was quashed due to his failure to comply with orders. He cannot relitigate a claim with an issue that he has already raised and lost. This would be an abuse of process. …

I do not accept the respondent’s submissions that he could not comply with the court orders. His actions in withdrawing monies from Superstar and Monarch and putting his purchased home into his current wife’s name are indicative of someone trying to avoid compliance with court orders as opposed to someone who cannot comply with the order. I find that the respondent chose to disobey the spousal support orders, not because he could not financially pay but rather because he thought the amount was unfair. I find that the respondent chose to disobey the orders requiring him to pay costs not because he could not financially pay but because he thought those orders were unfair. He has failed to explain his non-compliance on [a] basis that establishes an intention to comply.

I come to the same conclusion as the Court of Appeal, namely that the respondent’s failure to comply with the court orders is deliberate, relentless and indefensible. The applicant is entitled to the benefit of the trial judgment and has incurred significant costs in defending the respondent’s constant attempts to avoid his obligations. In these circumstances, I find that it is not appropriate to exercise my discretion in favour of the respondent.

[Emphasis added.]

v. On November 23, 2021, after receiving written cost submissions, Justice Hebner made an order requiring Mr Abu-Saud to pay Mrs Abu-Saud costs of her motion to stay his motion to change on a full indemnity basis, fixed in the all-inclusive amount of $8,987.17.

w. On January 19, 2022, the plaintiff Mrs Abu-Saud then served the co-defendants Mr Abu-Saud and Ms Al Touhoul with a motion brought herein pursuant to Rules 20.01(1) and 20.04(2)(a) of the Rules of Civil Procedure, seeking summary judgment in her favour setting aside the transfer of Mr Abu-Saud’s formal ownership interest in the condominium property to Ms Al Touhoul as a fraudulent conveyance, (as defined in section 2 of the Fraudulent Conveyances Act, supra), and restoring title of that condominium property to Mr Abu-Saud and Ms Al Touhoul as joint tenants.

x. At the initial return date of the plaintiff’s motion for summary judgment on January 28, 2022, Mr Abu-Saud appeared, representing himself and speaking to the matter as agent for Ms Touhoul. In doing so, he requested an adjournment of the summary judgment motion for the stated purpose of allowing time for Ms Al Touhoul time to retain legal counsel. In the result, Justice Rady adjourned the plaintiff’s summary judgment to a hearing date on March 18, 2022, peremptory on both defendants.

y. However, on March 8, 2022, (i.e., ten days before the scheduled return of the plaintiff’s motion for summary judgment in this proceeding), Mrs Abu-Saud and her counsel then were notified that Mr Abu-Saud had filed for bankruptcy; i.e., by Mr Abu-Saud’s trustee in bankruptcy serving a notice of a corresponding stay of civil proceedings against Mr Abu-Saud. In the result, Mrs Abu-Saud and her counsel were required to modify their previous litigation strategy, and pursue steps in the bankruptcy proceeding to lift the stay of her civil claims against Mr Abu-Saud, in the hope of finally securing the recovery to which she was entitled.

z. In June of 2022, however, Mrs Abu-Saud’s counsel Ms Hassan (now Justice Hassan) was appointed to the Superior Court of Justice, necessitating a handover of the plaintiff’s litigation files, with their complex history, to Justice Hassan’s former law partner and associate. The result was an unfortunate further delay in the taking of “next steps” on behalf of Mrs Abu-Saud.

aa. On October 26, 2022, however, an order was made pursuant to section 38 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3, effectively restoring Mrs Abu-Saud’s ability to pursue her civil claims against Mr Abu-Saud.[^6] Following the making of that order, lawyers indicating that they had been retained by Mr Abu-Saud, but who never placed themselves on record as counsel for Mr Abu-Saud and/or Ms Al Touhoul, entered into settlement negotiations with counsel for Mrs Abu-Saud, with the stated goal of arriving at a global settlement of all outstanding matters between the parties. Those negotiations, (during which Mrs Abu-Saud instructed her counsel to “hold off” on taking further steps in the litigation, while such negotiations continued), proceeded through to January of 2023.

[9] As noted above, the moving defendant Ms Al Touhoul served and filed her motion herein, (seeking an order discharging the CPL obtained by Mrs Abu-Saud and registered against title to the Coronation Drive condominium property), on or about March 10, 2023.

[10] At its initial return date on March 17, 2023, Ms Al Touhoul’s motion was adjourned to April 14, 2023, at which time Justice Garson determined that the matter required a special appointment hearing and, with ancillary directions to ensure readiness of the motion and the attendance of an Arabic interpreter, adjourned the matter to the in-person special appointment hearing that proceeded before me on July 27, 2023.

[11] In the meantime, the participating parties proceeded with completion of cross-examinations on the affidavits filed by Ms Al Touhoul and Mrs Abu Saud,[^7] and the subsequent filing of their required facta.

[12] In her motion material, and during the course of cross-examination on her supporting affidavit, Ms Al Touhoul asserted and relied upon additional allegations of fact that included the following:

a. On November 13, 2016, (i.e., approximately 22 months after the separation of Mrs Abu-Saud and Mr Abu-Saud, and approximately 7 months after the filing of Mrs Abu-Saud’s amended divorce application), in the city and country of Kuwait, Mr Abu-Saud and Ms Al Touhoul entered into a written “Acknowledgment & Agreement”, which Ms Al Touhoul describes as a “pre-marriage agreement”. In that signed, witnessed and sealed document, a copy of which was included in Ms Al Toohoul’s motion material:

i. Mr Abu-Saud and Ms Al Touhoul confirmed their engagement to be married.

ii. Mr Abu-Saud agreed that he was “obliged to acquire a matrimonial home in Canada to Miss Al Touhoul” after they got married and within two years of establishing residency in Canada, and that Ms Al Touhoul would be “the sole owner of such property”. In that regard:

1. Mr Abu-Saud “admitted” that “any amount of the purchase of the matrimonial home” would be “legitimate” and part of Ms Al Touhoul’s “dowry and marriage gifts”.

2. Mr Abu-Saud “acknowledged” that the “matrimonial home and the property therein” would be “a Pure Property for Miss Al Touhoul, and should not be Disputed by Anyone, Whether In [His] Life, Separation, Divorce, Death Or In any under what (sic) circumstances may happen in the future and which [Had] Not Been Mentioned”.

iii. There is an indication that the “Acknowledgement & Agreement” thus signed by Mr Abu-Saud and Ms Al Touhoul would “take effect when the parties [began] to coexist (sic) with each other”.

b. Mr Abu-Saud and Ms Al Touhoul thereafter married in Kuwait on February 26, 2017, with Ms Al Touhoul subsequently establishing residency in Canada on April 14, 2018. Ms Al Touhoul says that, in doing so, she fundamentally relied on the aforesaid “pre-marriage agreement” as part of her marriage “in accordance with custom”; i.e., when she left her stable life of 51 years in the Middle East, (including and secure employment she had held in Kuwait for 30 years),[^8] to marry Mr Abu-Saud and relocate to Canada as a new immigrant to start a new life, working with/for Mr Abu-Saud at his Superstar Investments Corp. company.

c. According to Ms Al Touhoul, she and Mr Abu-Saud initially occupied the relevant condominium unit on Coronation Drive as tenants. When the owner of the unit subsequently asked the couple to vacate, as he wished to sell the property, Ms Al Touhoul began to search for other rental properties here in the city of London but found that there was little available, or that available rental properties were available only at a very high cost; a cost which, she says, was unaffordable to herself and Mr Abu-Saud at the time.

d. Somewhat inconsistently, Ms Al Touhoul says that she and Mr Abu-Saud then decided to use their available resources to purchase the relevant condominium property in order to “avoid being homeless”. In that regard:

i. Ms Al Touhoul says purchase of the property was to be funded by $90,000 available from her own resources, (through redemption of an investment), $175,000 in financing to be provided to her by the Bank of Montreal, (through a “new immigrant mortgage” program offered by the bank), and $200,000 admittedly to be provided by Mr Abu-Saud.[^9]

ii. Notwithstanding the aforesaid purchase money contributions, Ms Al Touhoul is emphatic that the property once purchased was intended to be hers alone; i.e., in fulfilment of the obligation undertaken by Mr Abu-Saud, via the “pre-marriage agreement” described above, whereby Mr Abu-Saud agreed to provide Ms Al Touhoul with a matrimonial home that she alone would own.

iii. Ms Al Touhoul says that, notwithstanding that firm intention, she and Mr Abu-Said nevertheless took title to the condominium property jointly because the Bank of Montreal required that, as a condition of extending its contemplated mortgage financing. Moreover, she says, the Bank of Montreal also required that no changes be made in that regard, (i.e., in relation to joint holding of title to the property by Ms Al Touhoul and Mr Abu-Saud), until the initial term of the mortgage had expired. According to Ms Al Touhoul, she reluctantly and “temporarily” accepted Mr Abu-Saud’s addition to title to the condominium property, as a joint owner, only because the bank’s rules in that regard were beyond her control. However, she emphasizes that ownership of the condominium property was hers alone in “truth” and “reality”, and that Mr Abu-Saud’s indicated joint ownership of the condominium property was “on paper only”.

iv. According to Ms Al Touhoul, she alone provided the required downpayment in relation to purchase of the property, and that after the purchase transaction was completed, she alone then paid all required mortgage payments, condominium fees and property taxes relating to the condominium property.

e. Ms Al Touhoul emphatically denies that the Mr Abu-Saud’s transfer of his apparent joint interest in the condominium to Ms Al Touhoul was a fraudulent conveyance, as defined in section 2 of the Fraudulent Conveyances Act, supra; i.e., a conveyance of real property “made with the intent to defeat, hinder, delay or defraud creditors or others of their lawful action”. In that regard:

i. She says that Mr Abu-Saud transferred his “Partial Share” in the property “back to” her name to comply with the couple’s mutual intent expressed in their pre-marriage agreement.

ii. She denies that the timing of the transfer had anything to do with Mrs Abu-Saud’s claims against Mr Abu-Saud, and says the transfer occurred when it did, as a matter of pure “coincidence”, simply because “it was not possible to do it before that time”.

iii. She emphasizes Mr Abu-Saud’s affidavit sworn on April 23, 2020, attaching a statement indicating that he still had a net worth of $301,791.37 after he “cashed out $200,000” in order “to help buy the matrimonial home”, as evidence that Mr Abu-Saud’s financial contribution towards purchase of the Coronation Drive condominium property was not intended to reduce his assets below a level required to satisfy the claims of Mrs Abu-Saud.

f. Ms Al Touhoul also emphasizes her understanding that there was no court order in place, at the time of Mr Abu-Saud’s contribution of $200,000 to purchase of the condominium property or transfer of his ostensible joint interest in that property to Ms Al Touhoul, preventing either transaction.

g. Ms Al Touhoul repeatedly states and emphasizes that she was never involved in the marriage between Mrs Abu-Saud and Mr Abu-Saud, and has never been a party to the matrimonial litigation between them. She says that she nevertheless now has been subjected to harassing and abusive conduct by Mrs Abu-Saud and her lawyers, (e.g., via embarrassing text messages posted to social media by Mrs Abu-Saud, by “threats” that she will be removed from her home and that her home will be sold, and by filing the CPL against title to her home), all of which has placed restrictions on what she can do with her property, and has caused her and Mr Abu-Saud considerable psychological stress.

[13] With the entire presented factual background to this matter in mind, I turn next to relevant legislation and principles applicable to deciding motions of this nature; i.e., motions to discharge a CPL registered against title to property.

Legislation and general principles

[14] The current legislated system that governs how and when certificates of pending legislation are obtained, registered against title to property, and discharged is found in section 103 of the Courts of Justice Act, R.S.O. 1990, c.C.43, (“the CJA”), and Rule 42 of the Rules of Civil Procedure.

[15] Section 103 of the CJA, with its sub-headings, reads in part as follows:

Certificate of pending litigation

103. (1) The commencement of a proceeding in which an interest in land is in question is not notice of the proceeding to a person who is not a party until a certificate of pending litigation is issued by the court and the certificate is registered in the proper land registry office under subsection (2).

Registration

(2) Where a certificate of pending litigation is issued under subsection (1) it may be registered whether the land is registered under the Land Titles Act or the Registry Act. …

Liability where no reasonable claim

(4) A party who registers a certificate under subsection (2) without a reasonable claim to an interest in the land is liable for any damages sustained by any person as a result of its registration.

Recovery of damages

(5) The liability for damages under subsection (4) and the amount thereof may be determined in the proceeding in respect of which the certificate was registered or in a separate proceeding.

Order discharging certificate

(6) The court may make an order discharging a certificate,

(a) where the party at whose instance it was issued,

(i) claims a sum of money in place of or as an alternative to the interest in land claimed,

(ii) does not have a reasonable claim to the interest in the land claimed, or

(iii) does not prosecute the proceeding with reasonable diligence;

(b) where the interests of the party at whose instance it was issued can be adequately protected by another form of security; or

(c) on any other ground that is considered just,

and the court may, in making the order, impose such terms as to the giving of security or otherwise as the court considers just.

Effect

(7) Where a certificate is discharged, any person may deal with the land as fully as if the certificate had not been registered.

[16] Rule 42.02 of the Rules of Civil Procedure, with its headings and subheadings, reads in part as follows:

ISSUING OF CERTIFICATE

Court Order required

42.01 (1) A certificate of pending litigation … under section 103 of the Courts of Justice Act may be issued by a registrar only under an order of the court.

Claim for Certificate to be in Originating Process

(2) A party who seeks a certificate of pending litigation shall include a claim for it in the originating process or pleading that commences the proceeding, together with a description of the land in question sufficient for registration.

Motion without notice

(3) A motion for an order under subrule (1) may be made without notice.

Order to be Served Forthwith

(4) A party who obtains an order under subrule (1) shall forthwith serve it, together with a copy of the notice of motion and all affidavits and other documents used at the hearing of the motion, on all parties against whom an interest in land is claimed in the proceeding.[^10]

DISCHARGE OF CERTIFICATE

42.02 (1) An order discharging a certificate of pending litigation under subsection 103(6) of the Courts of Justice Act may be obtained on motion to the court. …

[17] Not surprisingly, the aforesaid provisions of section 103 of the CJA and Rule 42 of the Rules of Civil Procedure, and their application, have been the subject of considerable judicial discussion and interpretation. General principles that have emerged in that regard include the following:

a. The threshold of there being “an interest in land in question”, for the granting or maintaining of a CPL requires only the existence of a triable issue in that regard; not proof at that point of the plaintiff’s case, nor even a demonstration that the plaintiff is likely to succeed in establishing such a claimed interest in land.[^11]

b. In determining whether there is such a triable issue, the court does not assess the credibility of deponents or decide disputed issues of fact.[^12]

c. The triable issue requirement for the granting or maintaining of a CPL is instead satisfied where there is sufficient evidence to establish a reasonable claim to an interest in the land, in respect of which the plaintiff could succeed at trial.[^13]

d. A party opposing the CPL has the onus of demonstrating that there is no triable issue as to whether the party seeking to obtain or maintain a CPL has a reasonable claim to an interest in the land, in the sense required.[^14]

e. In determining whether to grant or discharge a CPL, factors the court may consider include such matters as whether the plaintiff is a shell corporation; whether the relevant land is unique; the intent of parties in acquiring the land; whether there is an alternative claim for damages; the ease or difficulty in calculating damages; whether damages would be a satisfactory remedy; the presence of absence of a willing purchaser of the property; and/or the harm likely to be experienced by each party if the CPL is or is not granted, or is or is not removed without security.[^15]

f. Where a CPL was obtained by a motion brought without notice, courts also may consider whether there was full disclosure of all material facts by the moving party. In that regard:

i. full disclosure of material facts is required on a motion for a CPL brought without notice; and

ii. if material facts were not disclosed, discharge of the CPL is not required, but such non-disclosure is a relevant consideration, and the CPL may be discharged on that basis if the undisclosed facts were material to the court’s decision to grant the CPL - as opposed to a requirement that the undisclosed facts were determinative in that regard.[^16]

g. However, there is no fixed code in relation to the matters a court may consider in determining whether or not to grant or discharge a CPL; a determination which turns on a fact specific exercise of the court’s equitable discretion having regard to all relevant circumstances in a particular case, including behaviour of the parties.[^17]

h. Courts nevertheless have long recognized that actions seeking to set aside an alleged fraudulent conveyance of land inherently involve claims in which title to or interest in land is brought into question, and that a CPL accordingly may issue in such an action even if the plaintiff is not yet a judgment creditor and/or has no established interest in the relevant land.[^18]

i. In particular, the granting and/or maintenance of a CPL has been considered appropriate, in the context of an action seeking a declaration that specified property was the subject of a fraudulent conveyance or preference, especially in circumstances indicating the presence of several “badges of fraud”; i.e., well-established indicia of fraudulent intent, allowing the subjective perspective of a party to be inferred from objective criteria.[^19] As interpreted by modern courts, “badges of fraud” include such matters as:

i. a party who donated or otherwise transferred his or her interest in a property thereafter remaining in possession of the property, and continuing to use the property as his or her own;

ii. the relevant transaction being done in secret;

iii. the relevant transfer being made in the face of threatened or extant legal proceedings;

iv. the transfer documentation containing false statements as to consideration for the transfer, and/or the transfer being carried out in exchange for nominal consideration or consideration significantly less than the property’s apparent market value;

v. unusual haste in making the transfer;

vi. a settlor’s retention of some benefit under a settlement;

vii. a transfer being made in the context of embarking on a hazardous venture; and

viii. the existence of a close relationship between parties to the transfer or conveyance.[^20]

[18] With all of the above in mind, I turn finally to application of those legislative provisions and general principles to the case at hand.

Analysis

[19] In that regard, I begin by noting my view that there were no inherent procedural deficiencies barring Mrs Abu-Saud’s entitlement to a CPL and its maintenance. Without limiting the generality of the foregoing:

a. In the originating process that commenced this proceeding, (i.e., the statement of claim herein issued by the plaintiff Mrs Abu-Saud on March 13, 2020), Mrs Abu-Saud included a claim for a CPL, together with a description of the relevant condominium property sufficient for registration purposes, thereby complying with Rule 42.01(2) of the Rules of Civil Procedure.

b. Although Ms Al Touhoul faults Mrs Abu-Saud for obtaining the relevant CPL by way of a motion brought without notice, Mrs Abu-Saud was entitled to do so pursuant to Rule 42.01(3) of the Rules of Civil Procedure. Although Ms Al Touhoul also points to the fact of this court having adopted a policy of only hearing “urgent” matters at the time of Mrs Abu-Saud’s ex parte motion, owing to the then prevailing COVID-19 pandemic and associated closure of the London courthouse, that supervening policy simply emphasized the court’s own need to prioritize the allocation of limited resources. Moreover, Justice Grace obviously found that the inherent nature and purpose of an ex parte CPL motion, (i.e., to enable a party claiming an interest in land an effective means of ensuring the claim is not defeated in practical terms by subsequent attempts to transfer or encumber that land, once existence of the claim has been revealed), demonstrated the requisite urgency. He otherwise would not have proceeded to deal with the motion.

c. In my view, Mrs Abu-Saud also satisfied the requirements of Rule 42.02(4), insofar as steps were taken, after the order made by Justice Grace on March 19, 2020, resulting in the relevant CPL being issued, to forthwith serve that order and Mrs Abu-Saud’s motion material on Mr Abu-Saud and Ms Touhoul. All of that material was in the hands of the defendants by March 23, 2020; i.e., less than four days later. I think that satisfies the definition of “forthwith” in the prevailing circumstances, bearing in mind the realities that it would have taken time for the court staff to issue and enter the Order made by Justice Grace and relay that issued and entered Order to counsel for Mrs Abu-Saud, (particularly at the height of the pandemic when court operations were extremely limited), and that a further modicum of time was needed for Mrs Abu-Saud’s counsel to carry out arrangements for personal service of the material on the defendants; something which no doubt also would have been challenging at the time, during the initial days of the pandemic and prevailing “stay at home” recommendations issued by the authorities.

[20] In the absence of any such procedural deficiencies, I turn (or return) next to the provisions of s.103(6) of the CJA, expressly addressing the circumstances in which a court may make an order discharging a CPL. Again, those provisions read as follows:

103. (6) The court may make an order discharging a certificate,

(a) where the party at whose instance it was issued,

(i) claims a sum of money in place of or as an alternative to the interest in land claimed,

(ii) does not have a reasonable claim to the interest in the land claimed, or

(iii) does not prosecute the proceeding with reasonable diligence;

(b) where the interests of the party at whose instance it was issued can be adequately protected by another form of security; or

(c) on any other ground that is considered just,

and the court may, in making the order, impose such terms as to the giving of security or otherwise as the court considers just.

[21] In my view, s.103(6)(a)(i) of the CJA clearly has no application to the circumstances before me. The statement of claim herein issued by the plaintiff Mrs Abu-Saud, (the party at whose instance the relevant CPL was issued), claims no sum of money in place of or as an alternative to the interest in land she is claiming.

[22] Similarly, in my view, this is not a case where s.103(6)(a)(iii) warrants a discharge of the CPL obtained by Mrs Abu-Saud. Without limiting the generality of the foregoing:

a. Although Ms Al Touhoul emphasizes Ms Abu-Saud’s acknowledged delay in registering the CPL she obtained against title to the relevant condominium property, I note again that s.103(6)(a)(iii) speaks to prosecution of the proceeding with reasonable diligence, thereby suggesting a focus on the overall progress of the proceeding, rather than a focus restricted to a specific incidental step in the proceeding viewed in isolation, (such as registration of the CPL against title), particularly when a delay in completing the incidental step in question arguably had no impact on the progress of the proceeding.

b. In the particular circumstances of this case, I do not think it can be fairly said that Mrs Abu-Saud’s conduct in relation to this proceeding has been unreasonable, or that she has failed to prosecute this proceeding with reasonable diligence having regard to the underlying circumstances and the broader context in which this litigation is taking place. In particular:

i. As noted above, Mrs Abu-Saud commenced this proceeding on March 13, 2020. Within six days, she had brought a successful ex parte motion for an Order issuing the CPL requested in her statement of claim. Within ten days of commencing the proceeding, that Order, the motion material used to obtain that Order, and the statement of claim herein, all had been personally served on both defendants.

ii. While it is true that approximately 21 months passed thereafter, before service of Mrs Abu-Saud’s motion for summary judgment herein, Mrs Abu-Saud certainly was not “sleeping” on the entitlements she was attempting to enforce. She was instead focused on actively responding to Mr Abu-Saud’s ongoing efforts, (through his proceeding initiated in the Court of Appeal, and his subsequent motion brought in this court to change Justice Carey’s judgment), to undermine or eliminate her court-ordered entitlements providing the raison d’être for this proceeding; i.e., an action to set aside an alleged fraudulent conveyance of Mr Abu-Saud’s interest in the relevant condominium property, thereby preserving at least one substantial and exigible asset of Mr Abu-Saud capable of being used to satisfy Mrs Abu-Saud’s court ordered entitlements. In that regard, I agree with plaintiff counsel that it made no practical sense to pursue this action aggressively in circumstances where the entitlements Mrs Abu-Saud was trying to enforce were under attack, and needed to be confirmed through the taking of steps to defeat Mr Abu-Saud’s appeal and motion to change. Obviously, there can be no enforcement without entitlements to enforce, and defence of Mrs Abu-Saud’s underlying court-ordered entitlements therefore was an understandable priority.

iii. In my view, Mrs Abu-Saud moved with reasonable dispatch to bring her motion for summary judgment herein once Mr Abu-Saud’s appeal and motion to change had been defeated, thereby ensuring that the court-ordered entitlements she seeks to enforce, (in part through the relief sought in this proceeding), were secure. To the extent progress of that motion for summary judgment has been delayed since it was served in January of this year, in my view that is not attributable to any fault on the part of Mrs Abu-Saud. To the contrary, such delay has resulted from apparent machinations by one or both of the defendants; e.g., to secure an initial adjournment of the motion on a ground that proved baseless, (insofar as Ms Al Touhoul never did retain counsel), to bring about further delay through Mr Abu-Saud’s filing for bankruptcy, (thereby effectively staying this proceeding until an appropriate order pursuant to section 38 of the Bankruptcy and Insolvency Act could be obtained by Mrs Abu-Saud, following a change in her representation that came about through no fault of her own), and to propose global settlement negotiations that apparently have gone nowhere. Of course, all of that has been followed by further delay of the plaintiff’s summary judgment motion to address the current motion brought by Ms Al Touhoul; a motion accompanied by voluminous filings, necessitating a lengthy special appointment hearing and another reserved decision.

c. Although Ms Touhoul placed considerable reliance on Mrs Abu-Saud’s acknowledged lengthy delay in registering her CPL against title to the relevant condominium property, (a delay which extended from March 19, 2019, through to January 8, 2021), in my view that does not provide a sufficient reason for an order discharging that CPL. Without limiting the generality of the foregoing:

i. As noted above, s.103(6)(a)(iii) focuses on a failure to prosecute the proceeding with reasonable diligence, rather than a delay in taking an incidental step in that proceeding. In this case, I see no basis for concluding that the relevant step in respect of which there was delay, (i.e., registration of the CPL on title), was responsible for delaying the progress of this proceeding. To the contrary, in my view, progress of the proceeding instead has been delayed by the other developments noted above.

ii. In this particular case, a reasonable explanation has been offered for much of the relevant delay; i.e., a reason expressly noted by Justice Grace when granting the Order issuing the relevant CPL, when he observed that the court systems normally in place to enable formal registration of a CPL against title were simply not available during the early stages of the COVID-19 pandemic.

iii. Moreover, I note that the provisions of the Order made by Justice Grace included extraordinary provisions that were tantamount to much of the protection normally offered by registration of a CPL on title; i.e., insofar as the defendants were expressly prohibited from dealing with the relevant property “in any manner whatsoever before the registration of the CPL without further order of the court or the written consent of the parties”. Those provisions of Justice Grace’s order arguably made any delay in formal registration of the issued CPL against the relevant property inconsequential in this case.

iv. Finally, I find it difficult if not impossible to see how any party, with the possible exception of Mrs Abu-Saud herself, was in any way prejudiced or potentially prejudiced by her delay in formally registering the issued CPL against title to the relevant condominium property. Again, the defendants were bound in any event by the provisions of the Order made by Justice Grace, which had been personally served on the defendants within days of that Order being made. To the extent some non-party might have registered an intervening charge or encumbrance against the property, prior to Mrs Abu-Saud formally registering the relevant CPL, Mrs Abu-Saud would have had only herself to blame for her claimed interest in the property potentially being subordinated to the registered interest of that non-party.

[23] In my view, this is not a case where an order discharging the relevant CPL should be granted on the basis of s.103(6)(b) of the CJA; i.e., a case “where the interests of the party at whose instance it was issued can be adequately protected by another form of security”. Without limiting the generality of the foregoing:

a. As noted above, this is a case where numerous judges of this court and our Court of Appeal have noted Mr Abu-Saud’s relentless refusal to comply with court orders and to satisfy his court-ordered obligations owed to Mrs Abu-Saud. In such circumstances, it seems hopelessly naive to think that those obligations will ever be satisfied in the absence of formal enforcement measures taken to redirect exigible assets of Mr Abu-Saud into the hands of Mrs Abu-Saud. Certainly, Mr Abu-Saud’s cooperation in that regard, to identify such assets and/or turn them over to Mrs Abu-Saud, cannot reasonably be expected.

b. As also noted above, Mr Abu-Saud now has declared bankruptcy. Implicit in the making of the relevant order granted pursuant to section 38 of the Bankruptcy and Insolvency Act, supra, allowing Mrs Abu-Saud to resume the pursuit of her civil claims against Mr Abu-Saud and Ms Al Touhoul, is a reality that there are simply no assets - or no sufficient assets - available to Mrs Abu-Saud via the bankruptcy proceedings to address her court-ordered entitlements in any meaningful way.

c. In my view, the above considerations underscore the further reality that there is no practical means of protecting the interests of Mrs Abu-Saud by some other form of security in this case, apart from maintaining the issued CPL. If the action herein succeeds, that CPL may facilitate Mrs Abu-Saud’s ability to levy execution against the 50% beneficial interest Mr Abu-Saud appeared to have in the relevant condominium property, prior to the alleged fraudulent conveyance of that interest to Ms Al Touhoul.

[24] Barring any resort to s.103(6)(c) of the CJA, (i.e., allowing the court to discharge a CPL on any unspecified ground the court considers just), the granting of an order discharging the relevant CPL therefore would seem to turn on the potential application of s.103(6)(a)(ii); i.e., on a potential finding that Mrs Abu-Saud “does not have a reasonable claim to the interest in the land claimed”.

[25] In my view, however, such a finding is not appropriate in the particular circumstances of this case. Without limiting the generality of the foregoing:

a. The interest in the relevant condominium property claimed by Mrs Abu-Saud in this proceeding is the interest said to be conferred upon her pursuant to section 2 of the Fraudulent Conveyances Act, supra; i.e., as a creditor of Mr Abu-Saud aggrieved by his alleged fraudulent conveyance of his interest in that property to Ms Al Touhoul.

b. Although Ms Al Touhoul emphasizes repeatedly that Mrs Abu-Saud has no established interest in the relevant condominium property, (i.e., in the sense that Mrs Abu-Saud was never registered on title to that property, and admittedly never made any direct financial contributions to the purchase or maintenance of that property), that is not a relevant consideration in relation to a claimed interest in land pursuant to section 2 of the Fraudulent Conveyances Act, supra. As noted above, our courts have long recognized that actions seeking to set aside an alleged fraudulent conveyance of land inherently involve claims in which title to or interest in land is brought into question, and that a CPL may issue or be maintained in such an action even if the plaintiff is not yet a judgment creditor, (although Mrs Abu-Saud was a judgment creditor of Mr Abu-Saud at the time of the alleged fraudulent conveyance, having received a judgment in her favour from Justice Carey just six days earlier), and/or has no established interest in the relevant land.

c. As noted above, it is not necessary at this stage of the proceedings to find that Mrs Abu-Saud will succeed in establishing that claimed interest in the relevant condominium property, or even that Mrs Abu-Saud is likely to succeed in establishing that claimed interest in the relevant condominium property. A triable issue in that regard will suffice to establish, at this stage of the proceedings, “a reasonable claim to the interest in the land claimed”.

d. As also noted above, it is Ms Al Touhoul, as the party opposing the relevant CPL, who has the burden of establishing that there is no triable issue in that regard. In my view, she has failed to meet that burden. In that regard:

i. In my view, (obviously shared to some extent not only by Justice Grace when ordering that the CPL be issued, but also by the Court of Appeal and Justice Hebner in their later rulings described above), there are troubling indicia of fraudulent intent, or “badges of fraud”, surrounding the impugned conveyance of Mr Abu-Saud’s ostensible interest in the relevant condominium property to Ms Al Touhoul. Without limiting the generality of the foregoing:

1. As noted above, despite Mr Abu-Saud transferring his ownership interest in the relevant condominium property, he thereafter remained in possession of that property and continues to use it as his home. He also failed to transfer his associated mortgage debt to Ms Al Touhoul, which one might reasonably have expected if the property was to be hers and hers alone following the impugned transfer.

2. Although Ms Al Touhoul denies that the impugned conveyance was carried out in secret, there is nothing before me to suggest that Mr Abu-Saud proactively brought the transaction to the attention of Mrs Abu-Saud or her counsel, despite the judgment that had been granted by Justice Carey just six days prior to the transaction. Moreover, the evidence indicating that Mr Abu-Saud deliberately did a relatively contemporaneous “end run” around the agreed policies and procedures of the Monarch Wealth Corporation, to surreptitiously withdraw all of his financial interest from Superstar Investments Corp. in the wake of Justice Carey’s judgment being released, reinforces an impression that he was moving by stealth to place his assets beyond the “execution reach” of Mrs Abu-Saud.

3. The relevant transfer of Mr Abu-Saud’s interest in the condominium property to Ms Al Touhoul clearly was made in the face of threatened or extant legal proceedings. Again, Justice Carey had issued his judgment in favour of Mrs Abu-Saud, and against Mr Abu-Saud, just six days earlier.

4. The impugned transfer involved Mr Abu-Saud obviously conveying his ostensible joint interest in the relevant condominium property for mere nominal consideration of $2.00; i.e., consideration far below fifty percent of the $455,000 value assigned to the property just two months earlier.

5. The impugned transfer arguably was done in haste, insofar as it was carried out so soon after the release of Justice Carey’s judgment.

6. There obviously was and is a close relationship between Mr Abu-Saud and the party to whom he transferred his interest in the relevant condominium property, insofar as Ms Al Touhoul was and is his second spouse.

7. Over and above the standard “badges of fraud” noted above, in this case there is the somewhat unique but additional reality of the findings made by Justice Carey, and the further findings repeatedly made by numerous judges of the Court of Appeal, that Mr Abu-Saud has consistently, deliberately and relentlessly refused and/or done everything in his power to avoid payment of his support obligations owed to Mrs Abu-Saud in the wake of their marriage breakdown and separation. In that regard, I appreciate that the time for determining the existence of fraudulent intent underlying a conveyance is the time at which the conveyance was made, and that a number of the developments considered by justices of the Court of Appeal, in arriving at the findings noted above, occurred after the impugned transfer that occurred on November 5, 2019. However, the same cannot be said of Justice Carey’s observations in that regard, and insofar as the Court of Appeal felt able to extrapolate a consistent and “relentless” intention on the part of Mr Abu-Saud from the outset, to avoid payment of his support obligations to Mrs Abu-Saud, that obviously reinforces the concerns raised by the other “badges of fraud” noted above.

ii. In her motion material and extremely impassioned oral submissions, Ms Al Touhoul essentially asked the court to prefer and accept her evidence that the relevant transfer of Mr Abu-Saud’s ostensible interest in the relevant condominium property was in no way intended to defeat, hinder or delay the claims or entitlements of Mrs Abu-Saud vis-à-vis Mr Abu-Saud; i.e., that it was merely a bona fide effort on the part of Mr Abu-Saud and Ms Al Touhoul to bring the “paper title” to the property in line with the true state of beneficial ownership of the property, (i.e., Ms Al Touhoul’s sole ownership of the condominium), actually established in advance of Justice Carey’s judgment, with the timing of the transfer being in close proximity to release of that judgment only as a matter of mere coincidence. Ms Al Touhoul’s position in that regard may or may not be vindicated as this matter proceeds. For present purposes, however, the simple answer to such arguments is that, as emphasized by the authorities outlined above, a judge determining whether or not an order discharging a CPL should be granted is not permitted to assess the credibility of deponents or decide disputed issues of fact. In this case, the question of whether or not the impugned transfer was carried out with the intent required to make the transaction a fraudulent conveyance, within the meaning of section 2 of the Fraudulent Conveyances Act, supra, is very much in dispute, with evidence offered to support the parties’ competing positions concerning the existence of such intent. In other words, there is a triable issue in that regard.

iii. Having regard to the increasingly cited list of factors to be considered in relation to motions to discharge a CPL, outlined in 572383 Ontario Inc. v. Dhunna, supra:

1. The plaintiff in this case self-evidently is not a shell corporation. Mrs Abu-Saud is a real person, who obviously has a sincere interest in pursuing this matter and challenging the impugned transaction as a fraudulent conveyance; i.e., as that may very well be the only avenue of recovery in relation to the entitlements the court has ordered in her favour, but which Mr Abu-Saud seems intent on frustrating.

2. There is nothing before me to suggest that the particular condominium property underlying this proceeding is unique, at least insofar as there are likely to be many properties of a similar nature within the city of London and elsewhere. Having said that, the property does have a unique quality insofar as it is the only known remaining asset in which Mr Abu-Saud may possess an exigible interest capable of being used to satisfy Mr Abu-Saud’s obligations to Mrs Abu-Saud in whole or in part.

3. As noted above, “the intent of the parties in acquiring the land” is a triable issue.

4. As noted above, the plaintiff Mrs Abu-Saud has not brought an alternative claim for damages in this proceeding.

5. In my view, the “ease or difficulty in calculating damages” is not really a relevant consideration in the present context. Mrs Abu-Saud’s entitlements vis-à-vis Mr Abu-Saud, and his corresponding obligations in that regard, already have been quantified in dollar amounts by previous court orders. If the impugned transfer of Mr Abu-Saud’s interest in the relevant condominium property is found to have been a fraudulent conveyance and set aside, Mrs Abu-Saud will be in a position to take further steps to force a sale of the relevant property to liquidate Mr Abu-Saud’s interest therein, and the sale price realized in relation to the relevant condominium in turn will dictate the value of 50% of the net sale proceeds to be made available to Mrs Abu-Saud; i.e., to address and satisfy her court-ordered entitlements in whole or in part.

6. For the reasons outlined above, I think it painfully clear that damages would not be a satisfactory remedy for Mrs Abu-Saud in this case. In particular, while the ultimate equities in relation to this matter have yet to be decided, it would appear on first blush that Mrs Abu-Saud has no claim in relation to the joint interest held by Ms Al Touhoul in the relevant condominium property before the impugned transfer. Mrs Abu-Saud’s claim in relation to the property relates to the joint interest previously held therein by Mr Abu-Saud, prior to the impugned transfer. Awarding Mrs Abu-Saud further damages in relation to this action, instead of granting the relief she seeks, (so that she will be in a position to levy execution against the joint beneficial interest Mr Abu-Saud arguably should still hold in the property), almost certainly will be of no benefit to Mrs Abu-Saud. In particular, as noted by the Court of Appeal, to date Mr Abu-Saud has done everything in his power to avoid paying Mrs Abu-Saud the court-ordered sums to which she is entitled. I see no reason to believe he will do otherwise in relation to any further damages awarded to Mrs Abu-Saud.

7. In this case, there is no evidence of any “willing purchaser of the property” standing in the figurative wings, ready to complete any contemplated acquisition of the relevant condominium property. In the circumstances, there is no pressing need to discharge the CPL in that regard.

8. As for the harm likely to be experienced by each party if the CPL is or is not granted, or is or is not removed without security:

a. There is nothing before me to suggest that Mr Abu-Saud or Ms Al Touhoul has the ability to post alternative security; i.e., as a substitute for maintaining the CPL and the protection that affords Mrs Abu-Saud. To the contrary, Mr Abu-Saud is now bankrupt, and Ms Al Touhoul is said to lack the resources to retain counsel.

b. If the CPL is removed without the posting of alternate security, Mrs Abu-Saud almost certainly will suffer harm; e.g., if the relevant condominium property is sold or encumbered before trial, thereby eliminating or diluting what is likely to be the only known exigible asset of Mr Abu-Saud if her action herein is ultimately successful.

c. If the CPL is left in place until the outcome of the trial in this matter, it is difficult to see how Mr Abu-Saud will sustain any significant harm, insofar as he apparently will deny having any beneficial interest in the property in any event.

d. If the CPL is left in place, Ms Al Touhoul would continue to be impacted, insofar as her ability to deal with the property effectively will be restrained prior to trial, or some further development resulting in the CPL being discharged. In that regard:

i. Any such impact obviously will have been justified, in retrospect, if Mrs Abu-Saud succeeds in proving that the transfer of a 50% joint interest in the property to Ms Al Touhoul was a fraudulent conveyance, in which case Ms Al Touhoul should not have had the intervening ability to sell or encumber the property in its entirety.

ii. Any such impact obviously will not have been justified, in retrospect, if Mrs Abu-Saud fails to establish that the impugned transfer was a fraudulent conveyance. In that regard:

1. The prospect of Ms Al Touhoul not being able to sell the condominium in the interim seems an irrelevant concern; i.e., as the entirety of her written and oral submissions emphasizes the importance to her of maintaining that particular property as her home, suggesting that no sale of the property is contemplated by her, let alone imminent.

2. In my view, the prospect of Ms Al Touhoul not being able to encumber the condominium in the interim nevertheless is a concern; e.g., insofar as maintenance of the CPL in the interim effectively may prevent Ms Al Touhoul from refinancing the existing mortgage on the property, particularly when it comes due, which in turn may raise the spectre of the property having to be sold in any event. However, I think the concerns in that regard are mitigated to some extent by the fact that the particular condominium in question, (although understandably important to Ms Al Touhoul, insofar as it represents her current home), inherently is not a unique property.

[26] As for whether there is “any other ground that is considered just”, for granting an order discharging the relevant CPL pursuant to s.103(6)(c) of the CJA, I am not persuaded that there is. Without limiting the generality of the foregoing:

a. I am not persuaded that there was any material non-disclosure by or on behalf of Mrs Abu-Saud, in relation to the ex parte motion decided by Justice Grace, which might have resulted in the relevant CPL being issued when that otherwise might not have happened. In that regard:

i. Although Ms Al Touhoul emphasizes that Justice Grace was not made aware of matters such as her personal circumstances, (including the “pre-marriage agreement” made with Mr Abu-Saud upon which she is said to have relied), the personal contributions to the relevant condominium purchase price she is said to have made, the personal expenditures which she is said to have made in relation to the property after its acquisition, or the extent to which Mr Abu-Saud had other liquid and exigible assets available to satisfy his court-ordered obligations prior to commencement of this proceeding, in my view most if not all of the matters identified by Ms Al Touhoul in that regard are not matters in respect of which Mrs Abu-Saud or her counsel reasonably could be expected to possess much if any information at the time of the relevant motion. On an ex parte motion, a party realistically only has an obligation to make full disclosure of the information which he or she has, or to which he or she has reasonable access.

ii. Although Ms Al Touhoul suggested that Justice Grace was not made aware of the appeal of Justice Carey’s judgment initiated by Mr Abu-Saud, that self-evidently was not the case. Justice Grace expressly made reference to the existence of that appeal, and therefore took into consideration the fact that the judgment Mrs Abu-Saud was seeking to enforce, through efforts including this action and the CPL requested therein, might not be permanent or immutable. Although a copy of the relevant notice of appeal was not included in the ex parte motion material filed on behalf of Mrs Abu-Saud, I am not persuaded that it was material, in the sense that its non-disclosure may have affected the outcome of the ex parte motion. Justice Grace clearly was in no position to determine how the Court of Appeal would decide that appeal.

b. It has been abundantly clear to me that this proceeding, and the resulting possibility of Ms Al Touhoul being found to have less than sole ownership of the relevant condominium property, is of the utmost importance to Ms Al Touhoul. Again, she emphasized in no uncertain terms that she relied fundamentally on her “pre-marriage agreement’ with Mr Abu-Saud, and that his documented commitment to provide her with sole ownership of a matrimonial here in Canada was regarded as fundamental consideration for her entering into marriage with Mr Abu-Saud. In her view, (which apparently may be shared by others having the same cultural background), the validity of her marriage to Mr Abu-Saud therefore is at stake, which in turn could have extremely serious social repercussions from her perspective. In her words, she “wishes to protect the legality of her marriage, which required the property to be transferred to her without conditions”. The resulting plight in which Ms Al Touhoul apparently finds herself is troubling, and certainly demands and deserves empathy. In my view, such considerations nevertheless cannot override or displace the outcome otherwise suggested by application of the relevant legislation and principles in the manner outlined above, even through the court’s exercise of equitable discretion in relation to such matters. Without limiting the generality of the foregoing, despite suggestions to the contrary by Ms Al Touhoul, I find it difficult to attribute Ms Al Touhoul’s plight to Mrs Abu-Saud. In particular, Mrs Abu-Saud obviously had no control over Mr Abu-Saud’s decision to enter into such a “pre-marriage agreement”, in relation to a contemplated second marriage, when he knew or ought to have known, (and disclosed to Ms Al Touhoul), that he had prior and outstanding obligations owed to Mrs Abu-Saud from his earlier marriage that had yet to be quantified or satisfied; obligations which might interfere with his ability to satisfy subsequent competing and inconsistent commitments. Moreover, in my view, the plight in which Mrs Abu-Saud now finds herself as a result of Mr Abu-Saud’s conduct is no less troubling, and no less deserving of empathy.

Conclusion

[27] For the reasons outlined above, the defendant Ms Al Touhoul’s motion for an order discharging the certificate of pending litigation obtained herein by the plaintiff is hereby dismissed.

Costs

[28] Because my decision was reserved, the parties were unable to make any submissions regarding costs having regard to the substantive outcome of the motion.

[29] If the parties are unable to reach an agreement on costs:

a. the plaintiff may serve and file written cost submissions, not to exceed five pages in length, (not including any bill of costs, settlement offers, authorities or other necessary attachments), within two weeks of the release of this decision;

b. the defendant Ms Al Touhoul then may serve and file responding written cost submissions, also not to exceed five pages in length, (not including any necessary attachments similar to those described in the previous sub-paragraph), within two weeks of service of the plaintiff’s written cost submissions; and

c. the plaintiff then may serve and file, within one week of receiving any responding cost submissions from the defendant Ms Al Touhoul, reply written cost submissions not exceeding two pages in length.

[30] If no written cost submissions are received within two weeks of the release of this decision, there shall be no costs awarded in relation to the motion.

Justice I.F. Leach

Date: November 1, 2023

[^1]: The undated “NOTICE OF MOTION” document served and filed by the moving defendant Ms Al Touhoul on or about March 10, 2023, also includes a request for an order dismissing an unspecified motion herein brought by the plaintiff; an apparent reference to a motion for summary judgment initiated by the plaintiff against both defendants via a notice of motion dated May 3, 2022, which has yet to be heard for reasons outlined in more detail below. In the final paragraph of her factum filed in support of her motion, Ms Al Touhoul went further, and requested relief whereby she would no longer be party to any further litigation between the plaintiff and the co-defendant, Mr Abu-Saud. However, when the matter came before me for an extended special appointment hearing on July 27, 2023, it appeared to be common ground that the only issue I was being asked to decide was the defendant Ms Al Touhoul’s request for an order discharging the certificate of pending litigation obtained by the plaintiff and registered against the home occupied by the defendants. That certainly was the indication provided in the undisputed Confirmation of Motion – Form 37B filed by counsel for the plaintiff.

[^2]: Although Mr Abu-Saud intermittently would pay larger amounts, his non-compliance with Justice Carey’s judgment resulted in the accumulation of substantial additional arrears in spousal support, beyond the total arrears in spousal support that had been calculated by Justice Carey.

[^3]: See Rules 38(33) and 38(34) of the Family Law Rules.

[^4]: As noted below, the CPL thus obtained by Mrs Abu-Saud would not be formally registered against title to the relevant Coronation Drive condominium property until January 8, 2021.

[^5]: See the affidavit of service sworn by Clint McMahon on March 24, 2020.

[^6]: For ease of reference, I note the following: • Pursuant to s.38(1) of the Bankruptcy and Insolvency Act, supra, where a creditor requests a trustee in bankruptcy to take any proceeding that, in the creditor’s opinion, would be for the benefit of the estate of the bankrupt, and the trustee refuses or neglects to take the proceeding, the creditor may obtain an order from the court authorizing the creditor to take the proceeding in the creditor’s own name, and at the creditor’s own expense and risk, on notice being given to other creditors of the contemplated proceeding, and on such other terms and conditions as the court may direct. • Pursuant to s.38(2) of the Bankruptcy and Insolvency Act, supra, upon such an order being made, the trustee in bankruptcy is obliged to assign and transfer to the creditor all of the trustee’s right, title and interest in the chose in action or subject matter of the proceeding, including any document in support thereof. • Pursuant to s.38(3) of the Bankruptcy and Insolvency Act, supra, any benefit thereafter derived from a proceeding taken pursuant to s.38(1), to the extent of the creditor’s claim and the costs thereof, belongs exclusively to the creditor instituting (or pursuing) the proceeding, although the surplus (if any) belongs to the estate of the bankrupt.

[^7]: On June 9, 2023, Ms Al Touhoul was cross-examined, by plaintiff counsel, on the affidavits sworn by Ms Al Touhoul on March 9, April 26 and May 4, 2023. On June 12, 2023, Mrs Abu-Saud was cross-examined, by the self-representing Ms Al Touhoul, on the affidavit sworn by Mrs Abu-Saud on May 15, 2023. As noted at the outset, Mr Abu-Saud did not participate in the motion brought by Ms Al Touhoul.

[^8]: During cross-examination on her sworn affidavit material, Ms Al Touhoul indicated that she previously had worked as a teacher, in an office, as an apartment manager, and in apartment administration.

[^9]: The strength of Ms Al Touhoul’s indications in that regard, and her further assertions about personally making all subsequent expenditures required in relation to the property after its acquisition, (outlined below), was undermined somewhat by her refusal to provide documentary evidence in that regard, despite being asked to do so during the course of cross-examination on her affidavit material.

[^10]: I note that Rule 42.01(4) speaks to the importance of there being no delay in service, on all parties against whom an interest in land is claimed in the proceeding, of an order directing the issuing of a CPL, and the motion material filed and relied upon by the party who obtained that order. Rule 42 does not speak to the possibility of delay in registering an issued CPL on title to property, presumably because it inherently is in the interest of a party obtaining such a CPL to register it on title as soon as possible; e.g., to ensure the priority of that party’s claim in relation to the property vis-à-vis any other party who might subsequently purchase the property or extend financing secured by registration of a charge against the property. However, there is authority indicating that a party’s lengthy and unexplained delay in registering an obtained CPL against title, after that party’s argument that granting of such relief was urgent, may provide grounds for discharging the CPL. See Winick v. Winick, [2008] O.J. No. 4091 (S.C.J.), at paragraphs 16, 28 and 37.

[^11]: See, for example: Transmaris Farms Ltd. v. Sieber, [1999] O.J. No. 300 (Gen.Div.), at paragraph 62; 1152939 Ontario Ltd. v. 2055835 Ontario Ltd., [2007] O.J. No. 4823 (S.C.J.), at paragraph 17; Perruzza v. Spatone, 2010 ONSC 841 (S.C.J.), at paragraph 20; Huntjens v. Obradovic, 2019 ONSC 4343 (S.C.J.), at paragraph 19; and Pacione v. Pacione, 2019 ONSC 813 (S.C.J.), at paragraph 20.

[^12]: See, for example: Mirrow Homes Ltd. V. Filice, [1990] O.J. No. 28 (H.C.J.), at paragraph 4; Correct Group Inc. v. Barrie (City), 2013 ONSC 4477 (S.C.J.), at paragraph 10; Harbouredge Mortgage Investment Corp. v. Community Trust Co., 2016 ONSC 448 (S.C.J.), at paragraph 45; and Huntjens v. Obradovic, supra, at paragraphs 20-21.

[^13]: See, for example: Vettesse v. Fleming, [1992] O.J. No. 1013 (S.C.J.), at paragraph 20; Transmaris Farms Ltd. v. Sieber, supra, at paragraph 62; Correct Group Inc. v. Barrie (City), supra, at paragraph 10; and Huntjens v. Obradovic, supra, at paragraph 21.

[^14]: See G.P.I. Greenfield Pioneer Inc. v. Moore, 2002 CanLII 6832 (ON CA), [2002] O.J. No. 282 (C.A.), at paragraph 20; Perruzza v. Spatone, supra, at paragraph 20; and Di Trapani v. 970 Canada Ltd., 2019 ONSC 7311, at paragraph 7.

[^15]: See 572383 Ontario Inc. v. Dhunna, [1987] O.J. No. 1073, at paragraphs 10-18; Perruzza v. Spatone, supra, at paragraph 20; and Huntjens v. Obradovic, supra, at paragraph 19.

[^16]: See Rule 39.01(6) of the Rules of Civil Procedure, which provides as follows: “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 failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.” See also Bank of Nova Scotia v. Rawifilm Inc., 1994 CanLII 7277 (ON SC), [1994] O.J. No. 4474 (Gen.Div.), at paragraphs 11-12 and 19; Hunter’s Square Developments Inc. v. 351658 Ontario Ltd., 2002 CanLII 49491 (ON SC), [2002] O.J. No. 2800 (S.C.J.), at paragraph 56, affirmed 2002 CanLII 9163 (ON CA), [2002] O.J. No. 4694 (C.A.); Bhandari v. Barrett, [2004] O.J. No. 4856 (S.C.J.), at paragraphs 17-18; 547CC Investments Inc. v. Colozza, [2009] O.J. No. 5390 (S.C.J.), at paragraphs 3,4 and 7; Bat-Amy v. Zribi, 2010 ONSC 1272 (S.C.J.), at paragraphs 7-8, 12 and 22; and Huntjens v. Obradovic, supra, at paragraph 23. “Material facts” constitute all those facts which the judge hearing the motion would need to be aware of in coming to his or her decision, non-disclosure of which may affect the outcome of the motion. See Pazner v. Ontario (1990), 1990 CanLII 6649 (ON SC), 74 O.R. (2d) 130 (H.C.J.), at paragraph 16; and Hunter’s Square Developments Inc. v. 351658 Ontario Ltd., supra, at paragraph 53 of the decision at first instance.

[^17]: See Sandhu v. Braebury Homes Corp., [1986] O.J. No. 124 (H.C.J.), at paragraph 8; 931473 Ontario Ltd. V. Coldwell Banker Canada Inc., [1991] O.J. No. 1150 (Gen.Div.), at paragraphs 61-62; Boal v. International Capital Management Inc., 2018 ONSC 2275 (S.C.J.), at paragraph 74; Huntjens v. Obradovic, supra, at paragraph 22; and Di Trapani v. 970 Canada Ltd., supra, at paragraph 8.

[^18]: See, for example: Bank of Montreal v. Ewing (1982), 1982 CanLII 1794 (ON SC), 35 O.R. (2d) 225 (Div.Ct.), at p.225; Vettesse v. Fleming, [1992] O.J. No. 1013 (S.C.J.), at paragraph 13; Transmaris Farms Ltd. v. Sieber, supra, at paragraph 61; United States (Securities & Exchange Commission) v. Boock, 2010 ONSC 2340 (S.C.J.); and Di Trapani v. 9706151 Canada Ltd., supra, at paragraph 8.

[^19]: See, for example: Di Trapani v. 9706151 Canada Ltd., 2019 ONSC 7311. See also Jones v. Jones (1982), 32 C.P.C. 105 (Ont. Master), and Albaroudi v. Tarkji, 2013 ONSC 1204 (S.C.J.); i.e., cases wherein the court refused to discharge a CPL registered by a family law litigant claiming that her former spouse/partner had fraudulently conveyed property in an effort to frustrate her claims and recovery.

[^20]: See, for example: Indcondo Building Corp. v. Sloan, 2014 ONSC 4018 (S.C.J.), at paragraph 52; and Anisman v. Drabinsky, 2020 ONSC 1197 (S.C.J.), at paragraphs 66-76.