Court File and Parties

Court File No.: FC-23-1248-00 Date: 2024-05-27 Ontario Superior Court of Justice

Between: Mojgan Rasaei, Applicant Mother And: Ahmed Haji Abdulrahman Bahman, Respondent Father

Counsel: Shahram Sean Bahmadi, for the Applicant (Romesh Hettiarachchi appearing) Ahmed Haji Abdulrahman Bahman, on his own behalf (Answer having been previously struck)

Added Respondent: TELB Mortgage Holding Corporation Counsel for TELB Mortgage Holding Corporation: Sean N. Zeitz and Jakob Bogacki

Added Respondent: The Director of Land Titles Counsel for The Director of Land Titles: Eunice Machado (counsel for the Ministry of the Attorney General)

Added Respondent: The Land Titles Assurance Fund

Heard: May 17, 2024

Justice: Alex Finlayson

PART I: OVERVIEW

[1] The principal parties to this family law proceeding are the Morjgan Rasaei, the Applicant Mother (the “mother”), and Ahmed Haji Abdulrahman Bahman, the Respondent father (the “father”). The parties have one child together, named Tiba, age 13.

[2] The parties were married on May 22, 2008. While the mother says they separated on May 5, 2022, the father alleged that the date of separation was June 28, 2019 in his Answer dated September 1, 2023 (which has been struck). He had also previously asserted that there is a separation agreement or document that exists, and that the parties were divorced in Bahrain on July 3, 2019.

[3] In early June of 2023, a little over a year after the mother’s May 5, 2022 date of separation, the mother retained counsel to resolve the family law issues between the parties. Within days of receipt of an initial letter from the mother’s counsel, the father took out a significant mortgage from TELB Mortgage Holding Corporation (“TELB”) (the “TELB Mortgage”) against the property in which the mother and the child have lived since shortly after they came to Canada in 2019 (the “Newmarket property”).

[4] The TELB Mortgage was for just over $1,260,000.00. The father was the sole owner of the Newmarket Property, at the time of the TELB Mortgage. The father claimed that he was “not a spouse”, or that he was “single”, on several real estate and financing documents in connection with the TELB mortgage. The father would later claim before this Court that he encumbered the Newmarket Property, to repay his family abroad, whom he said had loaned him money in the first place to purchase the Newmarket Property.

[5] By contrast, the mother says that the father is an extremely wealthy individual, with multiple millions of dollars of assets abroad. The mother was unaware of the TELB Mortgage when the father encumbered the Newmarket Property. If her spousal consent was required, she did not give it. She is concerned that there are already insufficient assets in Canada from which she can collect her family law entitlements, once they are determined. The father now lives in Iran.

[6] After several conferences and motions before this Court, Jarvis J. struck the father’s Answer on March 4, 2024, because the father is in breach of multiple Orders requiring him to provide various financial and other disclosure, and to make financial payments for the mother’s and the child’s benefit. The prior Orders of this Court also include the requirement for him to account for the funds he took upon the financing, which he did not do.

[7] With leave of this Court, the mother amended her Application on April 12, 2024. In her “Second Amended Application”, she claims relief against TELB and the Director of Land Titles (the “Director”). She asks for various declaratory relief, including that she and the father were “spouses pursuant to the definition of Family Law Act, at the time the Fraudulent Charge was registered”, that the date of separation is May 5, 2022, that the Newmarket property is a matrimonial home, and that she was deprived of her interest in the matrimonial home as a result of the fraudulent charge.

[8] The mother had also asked the Court in this Second Amended Application, to set aside the TELB Mortgage, but that issue later settled before this particular motion now before the Court was brought, apart from TELB’s claim for costs thrown away. The mother still asks the Court, essentially to direct the Director to pay her compensation from the Land Titles Assurance Fund (the “Fund”), though. These claims as against the Director did not settle.

[9] The mother brings a summary judgment motion for final Orders against both the father and the Director. In her Notice of Motion dated May 1, 2024, the mother seeks five things. First, she asks the Court to direct the Director to rectify the property register to accurately reflect the father’s marital status. Second, she asks the Court to declare that some 23 statements of fact, listed Schedule “A’ to her Notice of Motion, are true and binding on the parties.

[10] The final three requests for relief are interrelated. In particular, the mother asks the Court to make and declare four clusters of facts, which are very similar the statutory test for compensation from the Fund set out in section 57(4) of the Land Titles Act. She asks the Court to make it clear that these declarations will be binding on the Director for the purposes of a claim for compensation out of the Fund. Although she has not specified dollar figures in her Notice of Motion per se, she asks the Court to declare that she is entitled to be paid from the Fund, all monies that she has paid, and continues to pay, towards the TELB Mortgage to date, her costs, including her costs of this proceeding, and the balance owing on the TELB Mortgage. Together, these amounts would be the equivalent, in dollars and cents, of restoring the Newmarket Property to its previously unencumbered state.

[11] The Director initially sought an adjournment on the basis that the motion was premature, but upon further exploration, what the Director really wants, is an outright dismissal of the claims against it, based on this Court’s lack of jurisdiction to grant the relief sought against it. I declined to adjourn this matter, the motion was argued, and in these Reasons for Decision, I rule on the issue of jurisdiction that the Director has raised.

[12] On the merits, Ms. Machado for the Director argues that this Court cannot grant some of the declarations against it that the mother seeks. She says that the Land Titles Act provides for a claim for compensation from the Fund to be made exclusively by the Director, not the Court, followed by an appeal to the Divisional Court if the mother is dissatisfied. But the mother argues that there is a risk of inconsistent findings if this Court declines jurisdiction. What if, for example, this Court later determines in the family law proceeding, that the mother had an “interest in land” that she was wrongfully deprived of, within the meaning of the Land Titles Act, but the Director disagrees in the context of a claim for compensation?

[13] For the reasons that follow, I agree with the Director’s jurisdictional challenge. Factual determinations relating to the circumstances of the relationship and its breakdown, the mother’s family law claims and even her ability to collect, can be made in this case, as between the parties. Some of those findings will in fact be made on this motion, pursuant to rule 16(9) of the Family Law Rules. Additional findings may be made at the uncontested trial. Any such findings may very well impact a claim for compensation from the Fund. But should the Court act in a way that explicitly directs the conduct of a claim for compensation under section 57 of the Land Titles Act? I find that it should not. Rather, the mother may pursue compensation from the Fund, if she is entitled to it, in accordance with the statute. She must do this properly, and I find the proper process is not one that lies within this Court, at first instance.

[14] Moreover, the remedy that the mother had claimed against TELB (before the settlement), and the remedy that she continues to seek from the Director, both depend on findings that the parties were married when the father took the mortgage, and therefore that the Newmarket Property is a matrimonial home. Clearly the Court can decide these factual questions in the context of the family law claims between the parties. Even if the Court could decide these issues, specifically for the purposes of section 57 of the Land Titles Act, the test for summary judgment on these pivotal questions of fact is not met.

[15] The mother is required on a summary judgment motion to put her best foot forward. As I explain later, the mother did not in any real way, in her affidavit material for this summary judgment motion, address the separation document and the foreign divorce. These are relevant to this Court’s jurisdiction to grant family law relief between the parties. They were flagged as contested issues between the parties more than once in Endorsements of this Court. Both parties had previously filed affidavits with this Court, pursuant to Court orders, to address these matters, but those affidavits are conflicting.

[16] Those affidavits were not even properly put before this Court on this summary judgment motion. Had they been, there would still be unanswered questions that I find have to be resolved at the uncontested trial. Just because the father’s Answer has been struck, does not mean that the Court can just ignore matters going to the heart of its jurisdiction.

[17] As I told counsel for the mother, and the father, at the end of argument, I intend to give directions for the conduct of the uncontested trial. It was previously scheduled to proceed me on July 26, 2024 at 9 30 AM. I am concerned that the matter will not be trial ready for July 26, 2024, because the mother has already not, for the purposes of this motion when she ought to have, presented the evidence needed to address these relationship and jurisdictional issues. There are apparent gaps in the evidence. Therefore, there will be a further case management hearing before me as the trial judge on July 26, 2024, to organize the uncontested trial. The actual trial date itself will be rescheduled to proceed before me at some point after that, when the parties are ready.

[18] Finally, TELB seeks its costs thrown away, and the Director seeks its costs of this motion. For the reasons that also follow, their costs submissions will be deferred until after the Court releases its Judgment on the uncontested trial.

PART II: THE CONTENTS OF THE MOTION RECORD

[19] There are two preliminary issues that I wish to address at the outset of this ruling.

[20] First, I spent some time in advance of this motion, organizing the material, to ascertain what the record before the Court was supposed to consist of. I began this motion with a discussion with the parties about this. The mother did not in her Confirmation Form dated May 14, 2024 direct the Court to the precise material to review for this motion. Perhaps because of the settlement, TELB did not do so in its Confirmation dated May 14, 2024 either, other than saying that a Bill of Costs would be filed. But TELB’s affidavit material provides important context and background information, relevant to whether the Court was prepared to grant the settlement. It also contains other information relevant to the outstanding issues involving the Director. The Court reviewed it.

[21] Confirmation Forms must be fully completed in the future, especially in a case of this nature, where the event in question was a long motion with a record that consisted of several, voluminous affidavits, facta and other documents, and where this long motion followed after multiple prior steps in the case. This is essential to enable the Court to understand easily, efficiently, and properly what transpired to date leading up to a motion of this kind, and what the material that is supposed to be before it is, to be prepared in advance. In addition to directing judicial resources towards a search for the proper material before a judge can begin to read to prepare in advance, the failure to file a fully completed Confirmation Form risks later complaints that the Court did not review what it ought to have, or that it reviewed additional documents that it not ought to have. And in this case, as it turned out, affidavit material of the father’s was brought to my attention, yet it was not part of the summary judgment record per se.

[22] To be clear, the actual material before the Court for this motion was: (a) The mother’s “Second Amended Application dated April 12, 2024; (b) TELB’s Amended Answer dated April 18, 2024; (c) The mother’s Notice of Motion dated May 1, 2024; (d) The mother’s Affidavit sworn April 17, 2024; (e) The affidavit of Harvey Mandel, sworn April 22, 2024, filed on behalf of TELB, before the mother settled with it; (f) The affidavit of Theodore Batcher, sworn April 22, 2024, filed on behalf of TELB, before the mother settled with it; (g) The mother’s Factum; (h) The Director’s Factum; and (i) The mother’s Case Memorandum, responding to the Director’s Factum. [1]

[23] Court staff provided me with the father’s prior affidavit of August 2, 2023, even though it did not form part of the summary judgment record. By reviewing the prior Endorsements and Orders of this Court, I learned that the mother had likely, also previously filed related affidavits. I later learned that she had in the past uploaded onto case lines three affidavits sworn July 28, 2023 and August 8, 2023, and the father had uploaded another affidavit sworn September 1, 2023. As I explain in more detail below, all four of these affidavits appear to have been filed pursuant to Bennett J.’s Order of July 24, 2023, and ¶ 5 of Himel J.’s Endorsement of August 9, 2023. Their contents relate in part to the relationship issues and the Newmarket Property’s status as a matrimonial home. There was also the father’s Answer that had been struck. While these documents were not put before the Court by the parties for the summary judgment motion per se, they do have some import, when it comes to this Court framing the issues for the uncontested trial that will following this ruling, a procedural power that I intend to exercise pursuant to rule 16(9) of the Family Law Rules. They have also contributed to my concern that the mother is not trial ready.

[24] Second, the mother’s and TELB’s affidavit materials are cumulatively 728 pages in length, inclusive of exhibits. It appears that as between the mother and TELB, they reproduced the entirety of a lawyer’s real estate files and other documentation associated with the disputed mortgage transaction. There was also duplication within the exhibits. The exhibits in particular probably could have been pared down.

[25] Nevertheless, despite the length of these affidavits, the important facts that underlie this motion can be set out succinctly.

PART III: BACKGROUND

A. History of the Relationship

[26] The parties were married in Iran on March 30, 2008. The mother says their marriage was “certified” in Syria, and “registered” in Bahrain on May 22, 2008. [2]

[27] The mother had an associate degree in computer science, a diploma in math/physics, a certificate in photography and a certificate in “makeup and hairdressing” that she obtained prior to the marriage. The mother understood that her spouse was a “very successful businessman”.

[28] Before coming to Canada, the parties lived in Bahrain. The mother says that they lived a life of “extraordinary extravagance”. There, the father owned two mansions in prestigious areas, one of which was constructed from imported high end luxury building materials, such as from Italy. There were several luxury cars, and expensive off-road and on-road motorcycles. The houses had separate living quarters to house workers. They employed personal drivers, gardeners and other staff. The child also had two maids attending to her needs. [3]

[29] The mother says the father accumulated real estate and wealth around the world. In her affidavit of April 17, 2024, she cross referenced back to portions of another of her affidavits, this one sworn April 1, 2024, in which she further particularized his assets. She says she believes the father’s assets are worth in excess of $35 million.

[30] The mother says that despite this extreme wealth, she was unhappy with the manner in which her spouse treated her. For example, the mother was the child’s primary caregiver since her birth. She says she was prohibited from working, she was subject to strict restrictions that the father imposed, and she was not allowed to further her own education or earn an income while married. She did not even have a bank account.

B. The Apparent Prior Foreign Legal Proceedings

[31] The mother says that as a result, she sought “legal assistance in Bahrain to assert [her] legal rights, including the right to pursue education, the right to work, and the right to leave [her] home without requiring [her] husband’s consent.” The mother says that in response, the father expressed remorse for his past behaviour and made a commitment to take the family to Canada for a better future, especially for the child. This is the extent to which the mother made reference to what may be the separation document, and the foreign divorce, in her affidavit of May 1, 2024. Again, and importantly, this is the only affidavit material from the mother that is properly before the Court on this summary judgment motion, and there is no material at all from the father filed about this, perhaps because his Answer was struck.

C. The Move to Canada in 2019 and the Parties’ Subsequent Relationship

[32] The mother says that the family moved to Canada in January of 2019, and began residing in Richmond Hill. [4] She says that they disagreed after coming here about how long the family should remain. The father left Canada for Bahrain in July of 2019; the mother and the child stayed behind. The father seems to link these events to his asserted date of separation.

[33] Nevertheless, the mother says she continued to remain in contact with the father while he was away, hoping to be “civil” for the sake of the child. The father once again “expressed regret and remorse for his impulsive acts and promised to treat [her] with the respect that [she deserves]”. The mother says that the father then insisted upon buying a house that the family would live in, as a sign of his “changed behaviour”.

[34] The mother says that she encouraged the father to return to Canada. She says he did return in November of 2019, he apologized, and he said he wished to stay. She says he bought many gifts, including a large family portrait to be installed in the new house.

D. The Newmarket Property

[35] The father purchased the Newmarket Property for $1.575 million in April of 2020. He paid for the property in cash. This included an additional $236,250 for the “Non-Resident Speculation Tax”, and $27,975 in Land Transfer Tax.

E. The Mother’s Asserted Date of Separation

[36] The mother says that the father was periodically out of the country between 2020 and 2022, but they lived together as husband and wife whenever he returned. The mother says that the relationship came to an end in May of 2022, when the child discovered a video on the father’s phone of him sending “a kiss” to someone else.

F. Events Following the Mother’s Asserted Date of Separation

[37] The mother caused her family lawyer to send an “introductory letter” to the father about a year later. In it, the mother said that she would commence a proceeding, unless the parties could reach a resolution of their family law issues. Also in it, the mother raised decision-making, child support, section 7 expenses, spousal support, and equalization as the issues between the parties that needed a resolution. She asked him to provide a sworn financial statement and certain financial disclosure. The mother says that her lawyer later learned in July, that a mortgage had been registered in favour of TELB, within a week of the letter.

[38] The mother obtained and reviewed various documentation pertaining to this. She alleged that the TELB Mortgage was obtained by the father making “false and fraudulent representations” specifically, that the father was single and not married, and the property was not a matrimonial home, both of which she says are not true. The mother says that despite several warnings from both her lawyer and the Court, the father transferred the net mortgage proceeds overseas.

[39] The mother says the fair market value of the house was established at $2,150,000.00. She says that the father represented to TELB that he has other assets in excess of $23,000,000.00 when he obtained the mortgage. I also note the father also reported that his income was $500,000.00 on his net worth statement in support of the mortgage application.

[40] The mother says that she is now paying the mortgage even though she did not receive the mortgage proceeds. She says that she has to date paid in excess of $70,000.00 towards this mortgage and over $40,000.00 in legal fees. She is concerned that she will not be able to pay the mortgage, or to “recover compensation” for her loss. She is struggling to secure meaningful employment that would allow her to provide the care and support that the child needs. She says this is in part the result of the father’s prior refusal to allow her to work or have a social life for over 15 years.

[41] The mother says that even if she is successful in obtaining child or spousal support, she fears she will not be able to collect while he lives outside of Canada. For example, he has already not paid amounts that he was previously ordered to pay her, and he has breached other orders of this Court for financial disclosure. She says that an order for the sale of the property will not leave her with sufficient funds to acquire another home, either. Without the Court’s assistance, the mother says that her and the child’s long term future will be “irreparably jeopardized”.

G. The TELB Mortgage

[42] Mr. Batcher is an authorized signing officer for TELB, and the principal broker for TELB Investments Ltd., the mortgage brokerage for TELB. According to Mr. Batcher, in June of 2023, a mortgage broker with The Mortgage Alliance Company of Canada contacted TELB on behalf of the father, for a mortgage to be secured against the Newmarket Property. TELB collected various documents from the father, including a mortgage application, a net worth statement, a credit bureau report, and proof of identification. It also obtained an appraisal of the property.

[43] TELB agreed to provide 60% of the property’s appraised value. While TELB could not verify the father’s overseas’ income, it was prepared to accept his self-reporting about that. It chose to do so based on the father’s credit bureau report, and the amount of equity that existed in the property. Since it was only advancing 60% of the appraised value, TELB felt it had adequate security for its loan.

[44] Mr. Batcher deposes that throughout TELB’s process of collecting documents and information, the father represented that he was not a spouse or that he was single. In particular, the father did this on his mortgage application and his mortgage commitment. Ms. Batcher says that TELB had no reason to doubt his initial representations.

[45] TELB retained a lawyer, Mr. Mandel to register the mortgage. Ms. Batcher says that the father, and his lawyer, Hercules Faga, also represented to Mr. Mandel, that the father was not a spouse or that he was single. They signed or sent further documents attesting to this. For example, Mr. Faga’s legal assistant sent an email to Mr. Mandel dated June 14, 2023, stating that the father’s spousal status was single. Two days later, the father signed a Statutory Declaration under oath, saying that he was not a spouse. The Mortgage/Charge registered on title to the property contained the same statement. Mr. Batcher says that TELB had no reason to doubt these further representations.

[46] Attached to Mr. Mandel’s affidavit of April 22, 2024 is a copy of his file. Like Mr. Batcher, Mr. Mandel says that the father and his lawyer signed documents for the TELB mortgage attesting to his status as “not a spouse” or “single”. In his affidavit, Mr. Mandel lists various documents in his file that address this. Mr. Mandel also says that he had no knowledge that the father had a spouse, or that the property was a matrimonial home when he registered the mortgage. He says he had no reason to doubt the representations that had been made, no knowledge to the contrary, and no reason to investigate further, either.

[47] Mr. Batcher says that TELB first became aware of someone alleging to be the spouse of the father in an undated letter from the mother’s counsel to Mr. Mandel. That letter came as an attachment to an email on July 5, 2023. Mr. Mandel equally confirms that he first became aware of the issue via the July 5, 2023 undated letter.

[48] The letter states that the mother’s counsel had performed a title search that day, and learned that Mr. Mandel had registered an encumbrance on June 27, 2023. Counsel wrote that it was a “fraudulent encumbrance” in violation of section 21(1) of the Family Law Act, and that the mother was planning to bring an “urgent motion against all the fraudsters and all parties liable”. Counsel demanded that Mr. Mandel contact the father to return the money he took, to be kept in Mr. Mandel’s trust account.

[49] But already by the time of this letter, the TELB mortgage had been registered on title, and the proceeds had been dispersed into Mr. Faga’s trust account. Specifically, mortgage funds in the net amount of $1,257,633.54 (ie. $1,260,934.54, less Mr. Mandel’s legal fees of $3,301.00), were dispersed to Mr. Faga’s trust account on June 27, 2023.

[50] The mother and TELB now agree that TELB had no knowledge before or upon the registration of its mortgage that the father was or had a spouse. [5]

PART IV: PRIOR PROCEEDINGS

[51] The Court’s prior Endorsements and Orders reveal the following.

[52] The mother brought an urgent motion returnable on July 24, 2023. Although she did so on notice, she served her motion materials the same day. Consequently, there was no response from the father.

[53] This motion came on before Bennett J. Bennett J. treated the motion as an ex parte motion.

[54] In his Endorsement, Bennett J. noted that the mother had not put a matrimonial home designation on title to the home. Bennett J. noted that the father had responded to the mother’s counsel, said he had never lived in Canada, said that the parties separated in 2019, and said that the property is not a matrimonial home; it was purchased after the separation. Bennett J.’s Endorsement of July 24, 2023 also states that the father had sold the home with a closing of August 1, 2023. [6]

[55] Bennett J. made a preservation order. He directed on a without prejudice basis, that his Order could be registered on title, to effectively designate the Newmarket Property as a matrimonial home. He ordered Mr. Mandel’s office to retain any mortgage proceeds that he might still have or that were yet to be received, until further order of the Court. He ordered Mr. Mandel to provide a complete accounting of the funds advanced. He made a scheduling Order and an Order requiring the parties to file certain evidence relevant to these allegations, including about the relationship issues and the Newmarket Property’s status as a matrimonial home. He ordered the father to provide a tracing of the mortgage funds. He also ordered that the mother would have possession of the property pending further Order of the Court. But as it pertains to the preservation of the mortgage funds, it was already too late. By the time that the mother brought this motion on before the Court, the funds were gone.

[56] The return of this motion came on before Himel J. on August 9, 2023. She concluded that the evidence about the date of separation, and whether the property was purchased by the father before or after the separation, was contradictory. She also made reference to a Bahrain divorce, that had apparently been signed by the father but not the mother, and noted that the mother denied knowledge of this, having claimed to have recently just received it. She noted that the mother’s address was listed to be the same as the father’s, but apparently the family was already in Canada by the date of the divorce.

[57] It appears that the mother was aware of the separation document, though. Himel J.’s Endorsement states that the mother had not disclosed it. Rather, she now explained that the parties had reconciled after the date of the document. Himel J. went on to note an apparent dispute about how the mother represented her marital status when she applied for refugee status in Canada, and a factual dispute between the parties about whether the father visited Canada as a “spouse” or not. Notably, the father had still not disclosed all of the pages of his passport contrary to what Bennett J. had directed, although his lawyer said that was an error. The father had also not provided the tracing that Bennett J. ordered, either.

[58] According to the Endorsement, the father told Himel J. that he needed the mortgage funds to repay his family. He alleged that he was not working, and that he had no other income or assets. He claimed that he had obtained this loan to purchase the property in the first place. Yet the father’s financial statement then before Himel J. showed expenses of $130,000.00 per year in after tax dollars.

[59] Himel J. continued Bennett J.’s Order, except that the father had asked her to unfreeze the bank account that Bennett J. had preserved, to permit him to pay the housing expenses and to provide the mother with support. Himel J. agreed in part. She made an Order releasing money to the mother, not the father, to pay the expenses. She otherwise adjourned the mother’s motion for the return of the mortgage proceeds back to Mr. Mandel’s trust account, to a further process to be scheduled. She added in her Endorsement, that the Court expected the father to pay the ongoing mortgage, taxes and insurance. She made a further disclosure Order, which once again included the requirement to file evidence about the relationship.

[60] On September 12, 2023, Himel J. received a 14B Motion from TELB, asking to be added as a party to this proceeding. As the parties had not responded to it by the time it came before Himel J., rather than ruling on it, Himel J. invited TELB to appear at a case conference that had already been scheduled before her, on September 18, 2023.

[61] In her case conference Endorsement of September 18, 2023, Himel J. noted that the parties continued to disagree about the relationship issues. She noted that the father had been travelling extensively since 2019, but spent considerable periods of time in York Region. Himel J. noted conflicting statements that the father had apparently made, about his business operations. Importantly for this motion, she flagged that credibility was an issue in this case.

[62] After detailing that the mother required support, and that the father’s taking of the TELB Mortgage had created problems, Himel J. ordered the parties to attend mediation with a senior lawyer. [7] She made an Order for the parties to exchange requests for information and to respond to them, as well as to answer any already outstanding disclosure requests. She ordered the father to pay the mediator’s retainer, $30,000.00 to the mother as uncharacterized support, and a further $8,000.00 to the mother, to cover the October mortgage and house insurance payment.

[63] Finally, Himel J. scheduled TREB’s motion to be added as a party to this proceeding, to proceed on January 17, 2024. She said the mother could bring a motion for child and spousal support thereafter, on January 24, 2024. She made a scheduling Order for both events.

[64] In the interim, on October 6, 2023, the mother brought a motion to strike the father’s pleadings, or in the alternative to sell the Newmarket Property. Although the father had yet to respond to the motion when it came on before her, Himel J. was satisfied that the request was urgent. She noted the mother’s claim, that the father was in breach of her previous Order of September 18, 2023. She wrote that the mother had pointed the Court to evidence of her attempts to follow up about this, to secure his compliance, but without response from the father.

[65] Himel J. granted the mother leave to proceed with a motion on December 13, 2023, to strike the father’s pleadings, for enforcement of the September 18, 2023 Order, and for security for child and spousal support, equalization or other amounts. In this Endorsement, Himel J. did question how the Court could order the sale of the property, when the mother was not on title to it. Finally, she ordered that unless the father paid, within 48 hours, what he had been previously ordered to pay, there would now be a costs order of $1,000.00.

[66] The mother’s motion to strike came on before Jarvis J. on December 13, 2023. Jarvis J.’s Endorsement notes that by this point, the father had discharged his former counsel. The father then filed an affidavit of December 8, 2023 saying that he was unable to comply with the financial terms of the Court’s prior Order. Jarvis J. determined that TELB should be added as a party to the proceedings, rendering the January 17, 2024 motion date unnecessary. He did not strike the father’s Answer that day, though. Rather, he held that the motion to strike was premature until the issue of the validity/enforceability of the mortgage was determined. He nevertheless found the father in breach of aspects of Bennett J.’s Order of July 24, 2023 and the payment terms in Himel J.’s September 18, 2023 Order. He ordered the father to comply by January 12, 2024 and cautioned the father he was at risk of having his pleading struck in the future.

[67] Jarvis J. granted the mother leave to amend her pleading to advance a claim against TREB. He imposed a deadline for this of December 22, 2023, and made a scheduling order for any responding, amended pleadings from the father and TREB. Jarvis J. scheduled a further conference for February 12, 2024, to proceed after the mother’s remaining January 24, 2024 motion. He also ordered the father to pay costs to the mother of $3,500.00.

[68] I gather the support motion did not proceed on January 24, 2024, as there is no Endorsement pertaining to that date that I could find. On February 5, 2024, the mother filed a 14B Motion seeking leave to serve the father with an Amended Application by email. Due to deficiencies in the affidavit material in support of this request, Daurio J. adjourned the service issue to the conference on February 12, 2024. Although this Endorsement may make reference to it, it is not clear to me whether there was a different Amended Application, prior to the Second Amended Application, that the mother was seeking direction about how to serve. If there was one, it was not put before me, and I could not locate it.

[69] The February 12, 2024 conference proceeded before Himel J. The father did not appear. Himel J. found that the father continued to be in breach of various court orders, including for disclosure and the monetary payments previously ordered. She gave the father one more opportunity to comply by February 28, 2024, failing which she said the mother could bring another motion to strike his pleading, this time by way of 14B Motion. Himel J. also noted, that the mother said, she understood the property needed to be sold. Himel J. scheduled a motion for the sale of the property and for child and spousal support, or an advance towards equalization, now to proceed on April 17, 2024.

[70] At the February 12, 2024 date, TELB asked for a hearing date to address the mother’s request to set aside its mortgage. While counsel for TELB wanted to proceed by way of a motion for a summary decision on a legal issue, it was then unclear to the Court whether the requested motion engaged merely a legal issue, or whether there would be a factual component to it, and if so, whether there should be a trial of an issue instead. Either way, Himel J. directed that TELB’s issue should be heard during the spring 2024 sittings. Himel J. made various procedural orders in aid of this.

[71] The mother then filed a 14B Motion to strike the father’s pleadings in accordance with Himel J.’s Endorsement of February 12, 2024. On March 4, 2024, Jarvis J. granted an order striking out the father’s Answer.

[72] On April 8, 2024, the mother, and TELB, appeared before the Court for a Trial Scheduling Conference. By then, they both agreed to proceed with the TELB mortgage issue by way of summary judgment motion. Other than this, and the mother’s motion for interim financial relief, which had already been booked for April 17, 2024 (to which she wanted to add a request for a vesting order), Himel J. directed that there would be an uncontested trial on July 26, 2024. That is also scheduled to proceed before me.

[73] In the April 8, 2024 Endorsement, there is reference to another amendment of the mother’s pleading, this time to add the Director of Land Titles as a party to this proceeding. Himel J. directed the Court administration to expedite that. Regardless of whether there was already one Amended Application served or perhaps filed, this Endorsement resulted in the Second Amended Application of April 12, 2024, that I had before me for this motion, with both TELB, the Director, and the Fund, as added Respondents.

[74] The mother’s motion for financial relief came on before Jarvis J. on April 17, 2024. For the reasons set out in his Endorsement of that day, Jarvis J. made an order requiring the father to pay child support of $3,819.00 per month commencing February 1, 2024, based on imputed income of $500,000.00, and spousal support of $12,962.00 per month, also commencing February 1, 2024. Jarvis J. made a vesting Order transferring title to the Newmarket property into the mother’s name. He ordered that the mother could list the property for sale, and that the amount of $300,000.00 from any proceeds would be paid to her as an advance, with the balance being paid into Court.

[75] I initially read the comments in Himel J.’s Endorsements of September 18, 2023 and February 12, 2024, along side the April 17, 2024 Order, to mean that the vesting Order was granted in aid of the mother selling the property, which could not previously been done, as title was not in the mother’s name. However, counsel for the mother told me during this motion, that the mother wishes to keep the property, if possible. Upon a further review of Jarvis J.’s April 17, 2024 Order, the term about the sale is permissive, not mandatory. The reference to the advance of $300,000.00 to the mother from any sale proceeds, with the balance to be paid into Court, applies only if the property is sold.

[76] This motion came on before me on May 17, 2024. When I reviewed the materials, I saw that there was no claim for relief against TELB in the mother’s Notice of Motion. I asked the parties to clarify this as the outset of submissions. As a result of the way that things unfolded, followed by the settlement with TELB, no motion has ever been brought by the mother against TELB, nor by TELB to dismiss the mother’s claims against it in the Second Amended Application. Other than costs, the issues that are before the Court on this motion are as between the principal parties to this proceeding, and as against the Director only.

PART IV: ISSUES AND ANALYSIS

A. The Parties’ Positions Respecting the Mother’s Claims for Declaratory Relief

[77] The mother seeks various declarations. Some 23 statements of facts that she wants declared are listed in Schedule “A” to her Notice of Motion. In addition, there are four specific declarations of facts, not spelled out not in Schedule “A”, but in the body of her Notice of Motion itself, that the mother asks the Court to make, that would be binding on the Director.

[78] In particular, those claimed in the Notice of Motion are that she “had an interest in the Property”, that she was “wrongfully deprived” of that interest by the father’s failure to accurately describe his marital status when he obtained the mortgage, that this amounts to an error of entry in the register under section 57(4)(a)(iii) of the Land Titles Act, and that the mother is unable to recover “just compensation” for her loss within the meaning of section 57 of the Land Titles Act. In addition, she askes me to direct the Director to compensate her, as already explained. These declarations are very similar to the language in section 57(4) of the Land Titles Act.

[79] On the one hand, neither TELB nor the Director took a position respecting the 23 statements of fact listed in Schedule “A” to the mother’s Notice of Motion dated May 1, 2024. Ms. Machado even said that the Director would pay respect to any findings that this Court makes in this proceeding as between the parties, in a claim for compensation from the Fund. [8] But the Director is most certainly opposed to the Court tying its hands, by making findings or declarations of fact, for the purposes of section 57(4) of the Land Titles Act. The Director is opposed to the Court ordering the Director to determine the mother’s entitlements to compensation out of the Fund, too. The Director argues that the Court has no jurisdiction to do this.

[80] Both sides have advanced some arguments that I find to be either misplaced, or somewhat collateral to the main jurisdictional arguments. For example, the mother says that there is a risk of inconsistent findings if the Court makes different findings between the parties at trial than those that the Director might make. At paragraph 16 of her Factum, the mother argues that section 2(2) of the Family Law Act requires this Court to determine the issue. She also argues that the primary objective in rule 2(2) of the Family Law Rules, to enable the Court to deal with cases justly, favours this Court deciding the issue.

[81] I recognize this concern about inconsistent findings. I also recognize the importance of doing justice under Rule 2.

[82] However, while section 138 of the Courts of Justice Act does strive to avoid a multiplicity of legal proceedings, that applies only as “far as possible”. The Family Law Rules do not confer upon the Court any substantive jurisdiction that does not otherwise exist. And in my view, the mother has misinterpreted section 2(2) of the Family Law Act. Section 2(2) prohibits persons from bringing multiple applications for relief under the Family Law Act in different Courts. It provides that the Court before whom the Family Law Act application is pending may transfer it to another court having other jurisdiction. Not only does section 2(2) not authorize this Court to consolidate any proceeding before the Director into this case, but the Court could not transfer this case to the Director either; the Director is not a court having other jurisdiction. The most liberal interpretation of this aspect of the mother’s argument is that there may be concurrent jurisdiction in the Court and before the Director, and so if the Court grants declaratory relief that is binding on the Director, the risk of inconsistent findings in a claim for compensation from the Fund, dissipates.

[83] The Director referred to section 21.9 of the Courts of Justice Act, to argue that the mother has not sought this Court’s leave to hear this motion nor is this motion a “related matter”. Leaving aside whether this is a “related matter”, which was not strenuously pursued either. In the end, the Director chose to focus on its substantive jurisdictional argument, that only it may determine both liability and the quantum of compensation, if any, payable out of the Fund, subject to any appeal rights.

B. The Test for Summary Judgment

[84] Summary judgment in family law matters is governed by Rule 16 of the Family Law Rules. The legal principles that apply on motions for summary judgment are settled.

[85] In particular: (a) The mother as the moving party in this case bears the burden of proof. Under rule 16(4), she must serve and file evidence that sets out specific facts showing that there is no genuine issue requiring a trial; (b) Pursuant to rule 16(4.1), a responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial. The judge is entitled to assume that the parties have put before her or him all of the evidence that they would be able to adduce at trial; (c) This does not shift the ultimate burden of proof. Even if a respondent’s evidence does not establish a genuine issue for trial (or as here, where there is no responding evidence from either the Director or the father), the Court must still be satisfied on the evidence before it that the moving party has established that there is no genuine issue requiring a trial: see ¶ 80(2.) of Kawartha Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316; and (d) If there is no genuine issue requiring a trial of a claim or defence, the Court shall make a final Order accordingly: see rule 16(6).

[86] The Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 set out a process for determining whether summary judgment should be granted. In determining whether there is a genuine issue requiring a trial, the Court shall first consider the evidence submitted by the parties. If after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the expanded fact-finding powers in rule 16(6.1) and it may for the purposes of so doing, require oral evidence. There will be no genuine issue requiring a trial when the summary motions judge is able to reach a fair and just determination on the merits. This will be the case when the process allows the Court to make the necessary findings of fact, allows the Court to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result: see ¶ 49 of Hryniak v. Mauldin. “The standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute” see ¶ 50 of Hryniak v. Mauldin ¶ 50; see also ¶ 63 of Kawartha Haliburton Children’s Aid Society v. M.W.

[87] In addition, rule 16(12) also makes provision for a motion for a summary decision on a legal issue.

[88] Rule 16(12)(a) provides that the Court may, on motion, decide a question of law before trial, if the decision may dispose of all or part of the case, substantially shorten the trial or save costs. Rule 16(12)(c)(ii) provides that the Court may dismiss a case where the Court has no jurisdiction over it. Rule 16(12) has application vis a vis the jurisdictional question that the Director raises. [9]

C. The Test to Grant Declaratory Relief

[89] Pursuant to section 97 of the Courts of Justice Act, this Court may make binding declarations of right, whether or not any consequential relief is or could be claimed.

[90] At ¶ 60 of S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4, the Supreme Court reiterated that that declaratory relief is granted by a superior court on a discretionary basis. It may be appropriate where: (a) the Court has jurisdiction to hear the issue; (b) the dispute is real and not theoretical; (c) the party raising the issue has a genuine issue in its resolution; and (d) the responding party has an interest in opposing the declaration being sought.

[91] The Director’s arguments revolved almost entirely around questions of jurisdiction. Therefore, applying those arguments within this framework to grant declaratory relief, if there is no jurisdiction to decide the dispute, then the Court should not exercise its discretion to grant declaratory relief.

D. The Court’s Jurisdiction to Make Declaratory Orders That Would be Binding on the Director in A Claim for Compensation Under Section 57(4) of the Land Titles Act

(1) The Statutory Scheme and the Nature of the Compensation Fund

[92] The essential purpose of land titles legislation is to provide the public with security of title and facility of transfer: see Lawrence v. Maple Trust Company, 2007 ONCA 74 ¶ 30.

[93] According to the Government of Ontario website about it [10], the Fund was established to compensate people for certain financial losses they incur due to real estate fraud or omissions and errors of the land registration system. To be considered for compensation, one must make an application within 6 years of suffering the loss, and make a claim that is eligible for coverage. The website lists the kinds of claims that are generally eligible for compensation. The Fund may pay out financial losses resulting from a real estate fraud, reasonable legal costs related to the claim, and other reasonable costs related to the claim.

[94] Process-wise, an application is submitted to the Director of Titles. A Hearings Officer will review the application and may contact an applicant to request additional information. A Hearings Officer will determine if the claim meets the requirements for compensation and the amount of compensation if applicable. If the claim cannot be paid in full, the Hearings Office may hold a hearing to discuss the matter [my emphasis added]. The website provides some information about the format of the hearing.

[95] The existence of the Fund is part of Ontario’s policy choices about its land registration system: see Durrani v. Augier ¶ 78. These matters are of course governed by statute and regulation. For example, claims for compensation from the Fund are governed by section 57 of the Land Titles Act. Section 57(1) reads:

A person wrongfully deprived of land or of some estate or interest therein, by reason of the land being brought under this Act or by reason of some other person being registered as owner through fraud or by reason of any misdescription, omission or other error in a certificate of ownership or charge, or in an entry on the register, is entitled to recover what is just, by way of compensation or damages, from the person on whose application the erroneous registration was made or who acquired the title through the fraud or error.

[96] Sections 19 and 20, and sections 57(5.1), (6), and (7) are the statutory authority for the application out of the Fund, the decision of the Hearings Officer and the hearing itself. Section 17 of O. Reg 430/11 and section 64 of R.R.O. 1990, O. Reg 690 provide additional guidance. Appeal rights, discussed further below, are in sections 26 and 27.

(2) The Specific Statutory Test to Obtain Compensation from the Fund

[97] The specific statutory test to obtain compensation from the fund is set out in section 57(4). It reads:

A person is entitled to compensation from the Assurance Fund if, (a) the person is wrongfully deprived of land or of some estate or interest in land by reason of, (i) the land being brought under this Act, (ii) some other person being registered as owner through fraud, or (iii) any misdescription, omission or other error in a certificate of ownership or charge or in an entry on the register; (b) the person has demonstrated the requisite due diligence as specified by the Director if the person is wrongfully deprived of land or of some estate or interest in land by reason of some other person being registered as owner through fraud; (c) the person is unable under subsection (1) or otherwise to recover just compensation for the person’s loss; and (d) the person makes an application for compensation within the time period specified in subsection (5.1).

(3) Who Determines Who Is Entitled to Compensation From the Fund; the Director, the Court, or Either of Them?

[98] Citing section 11(2) of the Courts of Justice Act, the Director argues that while a judge of the Superior Court generally has the jurisdiction to consider all matters historically exercised by courts of common law and equity in England and Ontario, its jurisdiction here has been ousted in favour of an administrative tribunal. The Director relies on Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, where at ¶ 42-46, the Supreme Court held that any derogation from the jurisdiction of a provincial superior court requires “clear and explicit statutory language.”

[99] The Director submits this has occurred in section 57 of the Land Titles Act. Section 57(8) provides that the liability of the Fund for compensation and the amount of compensation shall be determined by the Director, and the costs of the proceeding are also in the discretion of the Director [my emphasis added]. This is mandatory language. The Director argues that the Court’s role is an appellate one only. Its factum states that any person who is affected by the Director’s Order has a statutory right of appeal to the Divisional Court. It cites section 27 of the Land Titles Act for this proposition.

[100] While I agree with the former argument about section 57, I believe that the Director’s Factum’s description of the appeal rights to contain a misstatement. Section 26 actually states that a party to a hearing under the Act may appeal the decision or order to “the court” within 30 days of the decision or the order, and the appeal shall be heard by way of a new trial. “Court” in this instance is defined in section 1 as the Superior Court of Justice, not the Divisional Court. Section 27 provides for a further appeal to the Divisional Court where a person is affected by an order made by a judge.

[101] What these provisions do not address (nor did either counsel) is what happens if the Director declines to pay the claim in full, and also declines to hold a hearing. Although the Director, both in its Factum and orally, submitted that the Director must hold a hearing if it decides not to pay the claim in full, section 57(7) actually confers upon the Director the discretion to hold a hearing in such circumstances. Perhaps this is not what happens in practice, but what if the Director fails to pay out a claim in full and decides not to hold a hearing? In such circumstances it is not clear to me that there would be a first level right of appeal to the Superior Court under section 26. It seems to me the proper procedure to follow in that instance, would be an application for judicial review to the Divisional Court: see sections 2(1) and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

[102] In any event, neither counsel directed me to a provision in the legislation that provides that a generalist judge of the Superior Court, let alone a judge of the Family Court Branch, is empowered to make decisions about compensation from the Fund at first instance. Nor was I given any case law where this had been done. Quite to the contrary, at ¶ 78 and 79 of Durrani v. Augier, Epstein J., as she then was, wrote about how the Fund works, within the context of a civil action concerning a fraud respecting a property. A claim for compensation from the Fund is a remedy of last resort. And notably, the heading that precedes ¶ 78 and 79 of Epstein J.’s Judgment, reads “Land Titles Assurance Fund and inability of the court to order compensation.”

[103] I find that the if the mother seeks compensation from the Fund, she must make a claim to the Director in accordance with the statute and regulations. If she is dissatisfied with the decision, she can pursue appeal rights or judicial review in the correct Court, as the case may be.

(3) Whether This Court Routinely Determines Whether A Person Has An Interest In Land under the Land Titles Act in Family Law Proceedings

[104] Although paragraph 5 of the mother’s Notice of Motion specifically says otherwise, counsel for the mother reframed his argument to say that the mother is not specifically asking the Court to direct the conduct of a compensation claim. Rather, two of the aspects of the statutory test under section 57(4) of the Land Titles Act, about which the mother wishes the Court to make declarations, are that she had an interest in land and that she had been wrongfully deprived of that interest. Counsel argued these are questions of fact that this Court can and should resolve on this motion. If they are resolved by way of binding declarations, she would then rely on them in a claim for compensation out of the Fund.

[105] In her supplementary Case Memorandum that the mother filed in reply to the Director’s Factum, the mother cites three decisions, namely Bajada v. Bajada, Carey v. Almuli, 2013 ONSC 6976, and Fraser v. Fraser, 2021 ONSC 1900 as supposedly standing for the proposition that Courts have “routinely determined whether a spouse has an interest in land as defined by the [Land Titles Act] as a result of the principles applied under the Family Law Act for decades.” However these cases are distinguishable in my view.

[106] In Bajada v. Bajada and Carey v. Almuli, the courts were considering whether to grant or discharge certificates of pending litigation. Section 103 of the Courts of Justice Act specifically provides this Court with jurisdiction to make such determinations. The applicable legal tests under section 103 in part turn on whether there is an “interest in land [that] is in question” or whether the party at whose instance the certificate was issued “does not have a reasonable claim to the interest in the land claimed”. And in Fraser v. Fraser, Desormeau J. considered whether a Notice under section 71 of the Land Titles Act had been appropriately registered to secure an equalization claim. Section 71 provides that a person may register such “notices, cautions, inhibitions or other restrictions as are authorized by this Act or by the Director of Titles” to protect various entitlements or interests, including “interests or equities in registered land”. Desormeau J. determined that it had not been properly registered and so she ordered it discharged, as she was also authorized to order.

[107] In summary, I find each of these cases to be distinguishable because they were proceedings involving the two principal parties. The Court had jurisdiction over the claims between them. The constituent elements of the applicable legal tests governing the claims between the two main parties squarely required the Court to decide questions about interests in land. None of these cases involved the Director directly. Nowhere does the Land Titles Act or the Courts of Justice Act confer upon the Director, in mandatory statutory terms, the exclusive authority to decide questions about certificates of pending litigation, or the discharge of an improperly registered notice under section 71. These cases did not concern claims for compensation out of the Fund under section 57 of the Land Titles Act, which does contain such mandatory language.

(4) Whether This Court Even Has to Determine that the Mother Had an Interest in Land to Resolve the Disputes Between the Principal Parties to this Proceeding

[108] The mother nevertheless asks the Court to liberally interpret the meaning of the words “any interest therein” within the definition of “land” under section 1 of the Land Titles Act. I gather she would then rely on the Court’s opinion about this definition in her claim for compensation.

[109] As I understand the argument, the mother frames her “interest in land” as being her right of possession of a matrimonial home under the Family Law Act, that she is now at risk of being deprived of, if the mortgage cannot be paid and TELB exercises its rights under the mortgage. The mother’s Factum speaks of further financial deprivation as a result of her having to keep the mortgage in good standing. And it states, incorrectly in my view, that if TELB exercises its rights under the mortgage in the event of default, TELB will be “contractually obliged to direct the proceeds of any sale [to the father], allowing him to profit from his wrongful conduct to the detriment of [the mother]. [11]

[110] Counsel for the mother told the Court that while there have been no cases that have held a right to possession was an interest in land, there were also no cases that said that it wasn’t. While that submission may have been made with specific reference to section 1 of the Land Titles Act, it is not entirely correct, that there are no cases about whether a Family Law Act possessory right qualifies as an interest in land.

[111] For example, at ¶ 14 and 16 of Bajada v. Bajada, Kozak J. held that an “interest in land”, (albeit again for the purposes of determining whether to grant a Certificate of Pending Litigation), means a “proprietary interest”. A claim for the beneficial ownership of property would place an “interest in land” into question. But at ¶ 13, Kozak J. wrote that it was “well-settled law that claims for the possession of the matrimonial home, either at common law or under statutory provisions, are regarded as personal and not proprietary rights and therefore incapable of support a certificate of pending litigation.”

[112] See also section 19(2)(a) of the Family Law Act, which provides that the right of possession is personal as against the first spouse.

[113] In any event, the Director questioned, quite rightly, whether this Court was even required to decide whether the mother has an “interest in land” in this proceeding, in view of the claims that are pleaded, as between the parties. Counsel for the Director makes a good point. Therefore, I specifically considered whether this Court needs to rule on the mother’s proposed interpretation of section 1 of the Land Titles Act. In my view, the Court does not need to decide this. As such, it should not exercise its discretion to grant the specific declaratory relief the mother would have be binding on the Director. In saying this, I also rely on S.A. v. Metro Vancouver Housing Corp., 2019 SCC 4.

[114] In that case, S.A. was a tenant with disabilities living in non-profit housing. Her tenancy was governed by a lease. But there were also two agreements between the Metro Vancouver Housing Corporation (“MVHC”) and the British Columbia Housing Management Commission that imposed several obligations on MVHC in managing certain properties in its portfolio.

[115] Tenants had to demonstrate that they met certain eligibility requirements to live there, and MVHC had to verify the income of tenants at the time of their initial occupancy and annually thereafter. One of the agreements also required MVHC to provide rent subsidies to 15% of its tenants of the housing complex. To satisfy this requirement, MVHC offered rental assistance on a discretionary basis to persons who met a separate set of eligibility criteria. Tenants had to apply annually, but given funding limitations, not all tenants would be granted assistance each year according to another written policy. Applicants were required to disclose whether they had assets in excess of a certain amount, although the definition of “assets” was not incorporated onto the application form.

[116] S.A. received rental assistance every year until 2015. She stopped receiving it after her father died, and she inherited some funds, but her inheritance was impressed with a Henson trust. A dispute arose over whether S.A. was required to disclose certain details of the trust.

[117] As a preliminary threshold issue, MVHC argued that there was no legal basis for a court to determine the dispute about S.A.’s interest in the trust was an “asset” for the purpose of determining eligibility for rental assistance, because the case was not brought as a judicial review of the decision to deny that assistance. The Supreme Court disagreed and went on to decide the issue. In so doing, the Court found the dispute was fundamentally contractual in nature. While S.A. did not have a contractual entitlement to actually receive rental assistance, the Court found that the tenancy agreement imposed a contractual obligation on MVHC to determine whether an adjustment would be made to the base rent in accordance with S.A.’s current income and the terms of the Rental Assistance Program.

[118] Consequently the Court then interpreted whether S.A.’s interest in the trust was an “asset” that could negatively affect her eligibility for rental assistance, because if it was not, then there was no basis for MVHC to require that she provide information regarding the value of the trust. In the result, the Court found that it was not an “asset”. MVHC was therefore not entitled to require S.A. to provide that information.

[119] The Supreme Court resolved the issue by granting declaratory relief. Importantly, it did so only after having found that the question was within the jurisdiction of the Court to decide, as a matter of contract, and the declaration had practical utility because it would settle a “live controversy” between the parties.

[120] But in this case before me, the mother’s claim for compensation is not “fundamentally contractual in nature”, it is statutory. None of the family law claims between the parties actually require me to find whether the mother had an interest in land. There is no claim for a beneficial ownership interest in the property. There is no claim for a Certificate of Pending Litigation. Even were the statutory right to possession of a matrimonial home, the rights of redemption and relief against forfeiture in section 22 of the Family Law Act, or the entitlement to an equalization payment under the Family Law Act “interests in land”, I do not need to define these claims as such according to any applicable legal tests, to decide the mother’s entitlements. Therefore, why is defining section 1 of the Land Titles Act justiciable in this case? And if it is not justiciable, on what basis should the Court grant declaratory relief.

[121] Moreover, there is no risk of inconsistent findings being made in this proceeding and in a claim for compensation from the Fund, because this Court will not be engaging in this definitional exercise at the uncontested trial.

[122] That said, as Desormeau J. wrote in Fraser v. Fraser, a remedy under section 9(1) of the Family Law Act, like a vesting Order, would give rise to proprietary rights. And in this case, Jarvis J. granted a vesting Order on April 17, 2024. That did give the mother, not just a claim for an interest in land, but an actual interest in this land, albeit after the fact of the TELB Mortgage. While a vesting Order is normally a final Order to satisfy other claims once quantified, in this case it was granted in advance of the quantification of the mother’s family law claims, more in the nature of security, in light of the father’s prior conduct in this case.

[123] At the uncontested trial, the Court will have to determine what the mother is entitled to under family law legislation, and whether this vesting Order was adequate to satisfy those claims in full. And to be clear, the dismissal of this motion does not mean that at the uncontested trial, the Court will not address questions of fact as between the parties, even if those touch upon a future claim for compensation from the Fund. Quite to the contrary, that is likely going to be required.

[124] For example, at ¶ 79 of Durrani v. Augier, Epstein J. wrote the following about how claims for compensation from the Fund work. She said:

… Generally, the way the Fund is designed to work is as follows. First, the person wrongfully deprived of an interest in land by reason of an entry on the register is entitled to recover what is just from the party responsible for the wrong. Where the individual wrongfully deprived of land is unable to recover just compensation for the loss by other means, the person is entitled to have the compensation paid out of the Fund. Such a claim must be made to the Director of Titles and the liability of the Fund for compensation and the amount of compensation shall be determined by the Director subject to a right of appeal.

[125] As can be seen, the first step in the process is to pursue a remedy from the father. The mother is pursuing her family law entitlements from the father in this proceeding, but this case is not yet over. Any of the Court’s findings about what the mother is entitled to, what she can or cannot collect, and the sufficiency of a vesting order, will obviously be relevant to the Director’s determination about the extent to which the mother could or could not recover from the father under 57(4)(c) of the Land Titles Act. The fact that there is now a vesting Order may even have relevance to the mother’s claims under section 57(4)(a).

[126] But at this point, a number of hypotheticals would have to be determined. For example, assuming, without deciding, that at the time of the TREB mortgage, the mother had a claim for a vesting Order to satisfy her family law claims, and that gave her an adequate interest within the meaning of sections 1 and 57(4)(a) of the Land Titles Act, the mother cannot yet establish that she is unable to recover just compensation because her family law entitlements have not been determined. This also assumes, without deciding, that the father wrongfully deprived her of that interest, which at least in part turns on the marital status issue. Again, the uncontested trial has not happened yet. As I set out below, the pivotal issue of the parties’ marital status is not yet clear cut.

[127] Nor was I even asked to ground any finding for the purposes of section 57(4)(a) of the Land Titles Act in the fact of a vesting Order, or a claim to one; this was not argued. Again, the mother framed her arguments as arising out of the alleged deprivation of her possessory rights under the Family Law Act. Similarly, quite apart from whether a deprivation of a potential possessory right, and more particularly or additionally, whether the deprivation of the right to redeem or for relief against forfeiture in section 22(1) of the Family Law Act (if a possessory right exists) are sufficient for the purposes of sections 1 and 57(4)(a) of the Land Titles Act, these require the Court to determine first the spousal status issue and consequently that the Newmarket Property was a matrimonial home.

[128] Regardless, I find it is up to the Director to decide any future claim for compensation that the mother may pursue, based on any deprivation of her rights of possession, or something else, if other arguments are later so framed.

(5) Whether the Mother Exhausted Her Rights Before the Director Before Coming to Court

[129] I also agree with the Director, that as the substance of the claim falls within the ambit of the statute, then the claim should be pursued as provided by that statute: see Snopko v. Union Gas Ltd., 2010 ONSC 248 ¶ 24.

[130] It was intimated during argument of this motion by the mother’s counsel, that the Director is going to deny her claim for compensation, and so perhaps that precipitated this motion. At paragraph 18 of the mother’s Factum, she states that the Director has “already communicated that the Applicant’s claims do not satisfy any of the criteria for compensation”. In footnote 20 of that factum, she refers to an undated “Letter from Director”.

[131] But I am left at the end of this motion wondering what steps if any the mother has already taken to claim compensation from the Fund, apart from pursuing it in this particular proceeding. What counsel for the mother and the mother’s Factum describe, are insufficient for me to know whether the mother applied for compensation properly, what the decision was, whether there was a hearing and so forth. These statements are not evidence. The narrative in the mother’s affidavit of April 17, 2024 says nothing of this, nor does the description of the exhibits referred to therein. If this “Letter from Director” was buried within another of the lengthy exhibits attached to the mother’s April 17, 2024, I was not directed to it. And if a claim for compensation from the Fund has in fact already been made, then perhaps that was done prematurely. Whatever the mother might be entitled to and can collect as a result of this proceeding, has not yet been finally decided.

E. The Mother Has Not Put Her Best Foot Forward Respecting The Relationship Issues

[132] There is an additional reason for the Court not to exercise its discretion to grant the declaratory relief claimed in the body of the Notice of Motion itself. The mother has not satisfied the test for summary judgment for the Court to make findings on the relationship issues.

[133] In the very lengthy affidavit that she did file in support of her request for summary judgment, the mother did not at all address the foreign divorce issue or the separation document, that had been flagged as issues in some detail in the prior Endorsements of this Court. This is surprising, since a finding that she was married at the time of the TREB Mortgage was pivotal to her claims against both TREB and the Director. It is also surprising because two judges had previously ordered these parties to file evidence respecting the relationship issues.

[134] Now as set out earlier, the parties did previously file some evidence. In the mother’s affidavit of July 28, 2023, the mother discussed the circumstances surrounding the parties coming to Canada and their subsequent relationship here. Like her motion for summary judgment, this affidavit does not address the foreign divorce or the separation document.

[135] With his affidavits of August 2, 2023 and September 1, 2023, the father produced certified translations of what appears to be the separation document dated June 28, 2019, and a divorce certificate from the Kingdom of Bahrain. The latter reveals that an Islamic divorce was granted on July 3, 2019. The father said that it was the mother who initiated the divorce proceedings in Bahrain. Although the father’s signature is on the document and the mother’s is not, the father said the divorce decree was emailed to her. In one of the aforementioned Endorsements, Himel J. pointed out some potential problems with this evidence.

[136] In her affidavit of August 8, 2023, the mother says that she did not know of the existence of the foreign divorce order. She said that her sister prepared the separation document, which she referred to as a “written communication aimed at resolving a dispute” but then the parties reconciled.

[137] Not only were these affidavits not filed as part of this motion for summary judgment, but as Himel J. previously indicated, they are conflicting. The mother could have, but did not file additional evidence, after the father’s pleadings were struck, as part of this summary judgment motion, to resolve the conflicts in the evidence.

[138] These issues raise fundamental questions about the Court’s jurisdiction to grant the mother some of the family law relief she claimed, let alone some of the declarations that she sought as against the Director. Depending on whether it is recognized or not, a foreign divorce may deprive the Court of jurisdiction to address some of the mother’s family law claims: see for example Vyazemskaya v. Safin, 2024 ONCA 156 ¶ 3, 4. In regards to her claims for relief against TREB and the Director, if the parties were already divorced by a valid foreign divorce order, then the father was not strictly speaking untruthful respecting the spousal status that he reported on the TREB Mortgage documents. That is, of course, not to say in any way, that the Court approves of the father depleting the equity in a property, matrimonial home or not, within days of receiving a letter from his spouse, and of failing to account for it as later Ordered.

[139] In these circumstances, where the mother has not tendered evidence about these relationship issues in her affidavit in support of the summary judgment motion to begin with, I would not embark upon using the Court’s expanded powers under rule 16(6.1), to try to resolve a conflict in other affidavit evidence that was not even properly put before me, or hold a mini trial under rule 16(6.2), to flesh this evidence out. It would in effect be an attempt by the Court to resolve conflicting evidence in other affidavits. For the purposes of the summary judgment motion, I would hearing much of the evidence for the first time. That is not the purpose of the expanded powers in the Rule, or of a mini trial. It would also incidentally result in two trials. I do not find this to be in the interest of justice, or a proportionate, more expeditious and less expensive means to achieve a just result.

[140] In the end, the Court does not intend to deal with these issues in a piecemeal fashion like this. And notably, once again here, no one asked me to turn to the expanded powers in any event.

F. Conclusions Respecting Some of the Mother’s Claims for Declaratory Relief

[141] In summary, a combined reading of sections 57(8), and 26 and 27 of the Land Titles Act, provide that the decision respecting compensation from the Fund is that of the Director in the first instance. The Superior Court’s role is to sit on appeal in certain instances. The Divisional Court hears appeals from that, or judicial reviews. This motion was neither of those things.

[142] It is not the role of this Court to decide most of the questions that the mother has put before it in her Notice of Motion. The mother’s family law claims do not actually require it to find that she has an interest in land to adjudicate any of them. Therefore, I decline to exercise the Court’s discretion to grant declaratory relief. The mother did not make out the test for summary judgment, either. There isn’t even adequate evidence before the Court for me to understand fully what claims, if any, the mother has already made to the Director, according to the mandatory process set out in the Land Titles Act and the regulations.

[143] The mother is free to advance her claim for compensation from the Fund in accordance with the statute and the regulations. She would be well advised to consider properly, the timing of any such claim, given Epstein J.’s comments in Durrani v. Augier, that she must pursue claims against the father first. The Fund is intended to be a remedy of last resort: see Baskaran v. Doshi, 2015 ONSC 3683 ¶ 47. I am not directing her to proceed in one fashion or the other. Although there is an upcoming uncontested trial, ultimately the decisions about whether to make a claim, and if so, about the timing of that claim, are hers to make in consultation with her counsel.

[144] Finally, for similar reasons, I do not at this time grant paragraph 2 of the mother’s Notice of Motion, for an Order directing that the Director of Land Titles rectify the register of property to reflect the father’s marital status. Again, a ruling about that marital status is not yet being made. That is a precondition to the Court finding an error in the Register.

G. Other Findings of Fact and Next Steps

[145] Rule 16(9) provides that if the Court does not make a final Order, or makes an order for a trial of an issue, the Court may, in addition to exercising a power listed in subrule 1(7.2): (a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise); (b) give directions; and (c) impose conditions (for example, require a party to pay money into court as security or limit a party’s pretrial disclosure).

[146] I intend to exercise the authority conferred upon the Court in both rules 16(9)(a) and (b).

(1) Findings of Fact

[147] There are a number of facts in Schedule “A” to the mother’s Notice of Motion, that neither TREB nor the Director opposed the Court making. While I would not find some of them for the reasons already expressed (ie. such as ¶ 1, which states the parties are still married, ¶ 3, which states that the parties were married at the time the property was purchased, ¶ 10, which contains an incorrect amount of the initial mortgage, and ¶ 11, 13b. and 14, which again make reference to the marital status or the Newmarket Property’s status as a matrimonial home), a number of the listed facts pertain to the details of the transaction or certain facts as between the principal parties to this proceeding, and they have been sufficiently proven on a summary judgment basis. The Court does not need to revisit this at the uncontested trial.

[148] Therefore, there shall be findings of fact in accordance with paragraphs 2, 4, 5, 6, 7, 8, 9, 12, 13a. and c. (but not b.), 15, 16, 17, 18, 20, 21, and 22 of Schedule “A”.

[149] In further regards to paragraph 19, the mother asks the Court to find or declare that the father is in contempt of several orders. The father has not been found in contempt, but he has been found in breach by Jarvis J. The Court does not need to repeat Jarvis J.’s findings in a declaration; those findings of breach has already been made.

[150] In regards to paragraph 23, the mother asks the Court to find or declare that if TELB does not receive all monies due and payable under the mortgage, it is contractually entitled to sell the property. TELB will have no contractual obligation to pay any surplus money to the mother. While that may be, as I have already indicated, if the property is sold due to non-payment of the mortgage, Jarvis J.’s Order of April 17, 2024 provides for the release of money to the mother, and the payment into Court of the balance.

(2) Issues for the Uncontested Trial

[151] In regards to the issues for the uncontested trial, it seems to me that they are: (a) whether there was a foreign divorce?; (b) whether it should be recognized by this Court?; (c) if so, how does the foreign divorce limit this Court’s jurisdiction, impact the mother’s claims, or both?; (d) whether the separation document was a valid separation agreement, and if so, what is its effect on the mother’s claims?; (e) if there was a separation in 2019, was there any resumed cohabitation?; (f) various parenting issues; (g) retroactive and prospective child support and section 7 expenses; (h) retroactive and prospective spousal support; (i) if the Court lacks jurisdiction to order spousal support under the Divorce Act because of the foreign divorce, whether the there is jurisdiction to order spousal support under the Family Law Act, having regard to the definition of “spouse” in section 29(a) or (b), for example because of any additional cohabitation after the 2019 within the meaning of section 29(a), or if not for three years, because the parties were in a relationship of some permanence, having had a child together within the meaning of section 29(b); and (j) equalization of net family property, and any potential remedies under section 9 of the Family Law Act.

[152] There may be other issues. Or, some of the ones that I have listed above, may fall by the wayside depending on the mother’s positions.

(3) Directions for the Uncontested Trial and Case Management Hearing

[153] At the end of this summary judgment motion, I told counsel for the mother, and the father, that I intended to hold a case management hearing. Based on my review of the Endorsements, the father’s actions have caused much chaos and problems, but the mother is not organized to present the evidence that the Court needs either. As the trial judge, I wish not only to ensure that the issues for this uncontested trial are clearly delineated, but also to have a discussion with the parties about the evidence that the mother anticipates calling, to ensure the Court gets all it needs to decide the issues.

[154] In that regard, I strongly encourage the parties to review recent decisions of the Ontario Court of Appeal respecting the validity of foreign divorces and to be prepared to advise the Court on what bases or basis the Court should or should not recognize the foreign divorce. In particular, they may wish to review Mehralian v. Dunmore, 2023 ONCA 806 and Vyazemskaya v. Safin, 2024 ONCA 156, and, depending on the ground advanced, consider whether expert evidence is required.

[155] Finally, I also wish to have a discussion with the parties about whether the father should have any limited rights of participation at the uncontested trial, perhaps in respect of the relationship issues. While his Answer was struck due to non-disclosure and his non-compliance with payment Orders, the aforementioned affidavits from both parties pertain to the relationship issues, the Court had previously ordered them to file these, they are conflicting, and they go to the heart of questions about the Court’s jurisdiction to grant the mother certain remedies. The father’s affidavits have also not been struck, even though his Answer was. The Court is not prepared to just ignore them; they have to be addressed. Rule 1(8.4) of the Family Law Rules preserves a trial judge’s ability to allow for some form of participation, even where a pleading has been struck in such circumstances: see for example the decision of Stevenson J. in AMC v. GC, 2013 ONSC 2608 ¶ 51-53.

H. Costs

[156] TELB seeks its costs thrown away. The Director seeks its costs of the motion. Rule 24(10) provides that costs are normally dealt with immediately after each step. However pursuant to rule 24(11), the failure of the Court to act under rule 24(10) in relation to a step in a case does not prevent the Court from awarding costs in relation to the step at a later stage in the case.

[157] Although the Director was successful and there may very well be valid arguments about TELB’s costs thrown away, under rule 24(7), a party who contributes to the step being unproductive may face costs consequences. Under rule 24(8), if a party has acted in bad faith, the Court shall order him or her to pay costs on a full recovery basis. The amount of costs to be ordered also depends in part on each party’s behaviour under rule 24(12)(a)(i). These costs rules may have some application in the unusual circumstances of this case, when this Court decides costs of this motion.

[158] Therefore I have determined that costs submissions should be adjourned until after the conclusion of the uncontested trial. The Court wishes to hear and consider the costs arguments relating to this motion in the context of the entire case, after it has rendered a decision about the issues between the parties and after it has made findings of fact about them and their conduct. Then, it will be in a better position to determine which aspects of Rule 24 apply, and how they should be applied, in that full context.

[159] As TELB and the Director are not participating in the trial, the Court will make provision for a copy of the eventual Judgment to be given to their counsel for the purposes of the costs submissions.

PART V: ORDER

[160] I make the following orders: (a) On consent of the mother and TELB, this Court declares that the TELB Charge, bearing Instrument Number YR3566876, is valid, effective and enforceable; (b) Except for costs submissions, TELB is no longer a necessary party to this proceeding and shall be removed as a party to this proceeding; (c) The mother’s motion for summary judgment as against the Director is dismissed. In particular, the Court dismisses paragraphs 2, 3, 4 and 5 of the mother’s Notice of Motion dated May 1, 2024, recognizing that the Court may make some findings as between the parties that touch upon these matters at the uncontested trial. Nothing in the Court’s dismissal prejudices the mother should she make a claim for compensation from the Fund. Except for costs, the Director is no longer a necessary a party to this proceeding and the Director shall be removed as a party to this proceeding; (d) Within 7 days, counsel for the mother and the Director shall submit to my attention c/o the judicial assistant Meghan.Billings@ontario.ca, a draft Order varying the Order of Jarvis J. dated April 17, 2024 on consent, to include the necessary language to complete the vesting Order. If there is a dispute about the language, then I should be contacted and I will arrange a short zoom attendance with counsel for the mother and the Director to settle the issue; (e) Pursuant to rule 16(9) of the Family Law Rules, the Court finds the facts set out in Schedule “A” to the mother’s Notice of Motion dated May 1, 2024 are not in dispute, and so findings of fact are hereby made in accordance with paragraphs 2, 4, 5, 6, 7, 8, 9, 12, 13a. and c. (but not b.), 15, 16, 17, 18, 20, 21, and 22; (f) Pursuant to rule 16(9) of the Family Law Rules, the Court gives the following directions: (1) The issues for trial are those set out in ¶ 153 of these Reasons for Decision; (2) There shall be a case management hearing on July 26, 2024 @ 9 30 AM for 60 minutes to proceed by zoom, rather than the uncontested trial. The purpose of the case management hearing shall be to discuss the format of the uncontested trial; (3) For that hearing, the mother shall file a Confirmation Form advising the Court whether any of the aforementioned issues can be removed, or whether she wishes to add any others, provided they are raised in her Second Amended Application and not otherwise dismissed by this ruling; (4) For the uncontested trial, the mother is to prepare a Trial Record and she is to file a 23C or an affidavit and documentary evidence to prove her claims. At the case management hearing, there shall be a discussion about what this might include, and page limits on the evidence. The mother shall include in her Confirmation Form for July 26, 2024, her trial plan, to include whether there is any additional affidavit evidence, how much time will be required for oral evidence in addition, and so on; (5) The mother shall advise the Court in her Confirmation Form, on what basis she is asking the Court not to recognize the alleged foreign divorce, and how she intends to ask the Court shall deal with the separation document at the uncontested trial; (6) The mother shall advise the Court whether she intends on calling any expert evidence; and (7) Both parties may advise the Court how the father should be permitted to participate on a limited basis with respect to the relationship issues. For example, should both parties previous affidavits of July 28, 2023 and August 8, 2023 for the mother, and the father’s affidavits of August 2, 2023 and September 1, 2023 be put before the Court, in addition to whatever other evidence the mother will file with her uncontested trial material? Should the father be permitted to cross examine on the relationship issues, as Stevenson J. allowed in AMC v. GC?; (g) TELB’s costs thrown away, and the Director’s request for costs of this motion, are adjourned to be argued after the conclusion of the uncontested trial; (h) A copy of these Reasons for Decision shall be given to the parties, to counsel for TELB and to counsel for the Director; (i) The Court shall make further provision for the receipt of costs submissions at the conclusion of the uncontested trial. It shall direct that the family law Judgment to follow the uncontested trial shall be sent to counsel for TELB and the Director; and (j) Counsel for the mother shall take out this Order, to include the full wording of the Court’s findings of fact being made, but based only on the above listed paragraphs in Schedule “A” of her Notice of Motion dated May 1, 2024. The approval of the draft Order from counsel for TELB and the Director is required, but that of the father is not required.

[161] I wish to thank counsel for their facta and oral submissions, and their presentation of these issues.

JUSTICE A. FINLAYSON Released: May 27, 2024

Footnotes

[1] The mother uploaded this onto Caselines only on May 15, 2024, in Reply to the Director’s Factum.

[2] The mother pleads May 22, 2008 as the date of marriage in the Second Amended Application. The father agreed that the “Family History” was correct in his Answer dated September 1, 2023 that has been struck, but he then filled out a “Family History” page of his own. On that, he agreed that the date of marriage was May 22, 2008, but disputed the date of separation.

[3] The mother tendered a number of photographs showing the father’s “Hamad Town Mansion”, an apartment in Malaysia, a blue Porsche, a white Mercedes, a white Cadillac SUV, two other cars that appear to be luxury vehicles, two women caring for the child, and a picture from a magazine that the mother has described as evidence of the father’s “reputation”.

[4] This was before the date of the separation document and foreign divorce.

[5] The Court has not yet determined that the parties were spouses.

[6] The mother did not explain to me in her current material, what she told Bennett J., that caused him to write that the property had been sold. The house has not been sold.

[7] The Endorsement states that the parties had already agreed to go to mediation. This aspect of Himel J.’s Order was in aid of organizing the mediation.

[8] Quoting Ms. Machado, “the Director of Titles doesn’t want to have to make many determinations of fact”.

[9] Incidentally, rule 16(13) provides that evidence is only admissible on a motion under rule 16(12) if the parties consent or the court orders otherwise. Notably, the mother and TREB filed evidence on this motion, whereas the Director did not. The evidence that the mother and TELB filed pertains to the claims against TREB which resolved, and which would have been heard under the other parts of the summary judgment rule, but for the settlement. The evidence is also filed in support of some of the mother’s requests for declarations of fact that neither the Director nor TREB oppose. To the extent that any of the evidence touches upon the determination of a question of law, the Director did not object to the mother’s evidence under rule 16(13).

[10] The Director provided a link to this information on the Ontario.ca website in its factum, so I have reviewed it.

[11] This statement is incorrect, in view of Jarvis J.’s Order of April 17, 2024 that provides for the advance to the mother, and the preservation of the balance of any sale proceeds.