Court File and Parties

COURT FILE NO.: FS-22-27890 DATE: 20240828 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Kim Dalglish Abell, Applicant – and – Martin Abell, Respondent

Counsel: Kim Dalglish Abell – Self-Represented Kenneth Cole and Rachell Hill, for the Respondent

HEARD: August 13, 2024 MATHeN, J.

REASONS FOR JUDGMENT

[1] At a long motion heard before me, the Respondent, Martin Abell (“Respondent” “Martin”), sought the following relief:

a. An order to enforce an agreement reached between the parties at a case conference before Justice Maxwell on April 24, 2024. Under that agreement, the parties came to terms for the sale of two jointly owned properties.

b. In the alternative, the same relief by way of summary judgment.

c. Final orders regarding child support by way of summary judgment.

d. An order, inter alia, striking the pleadings of the Applicant, Kim Dalgish Abell (“Applicant”, “Kim”) on the basis of her failure to comply with Court Orders, her bad faith and her unreasonable behaviour.

[2] The issues for me to decide are:

a. Does Justice Maxwell’s April 24, 2024 endorsement reflect an agreement between the parties that may be incorporated in an order?

b. If yes, does the Respondent’s specific requested relief reflect that agreement?

c. If the answer to a or b is “no”, is the Respondent nonetheless entitled to the same relief via summary judgment?

d. Should Justice Myers’ temporary order of May 25, 2023 be turned into a final one?

e. Should the Applicant’s pleadings be struck?

BRIEF CONCLUSION

[3] I find that the parties did reach an agreement to sell their jointly owned properties, which was endorsed by Justice Maxwell. The endorsement not only reflects the discussions during the case conference, but it is consistent with numerous prior statements of the Applicant.

[4] The Draft Order prepared after the endorsement fairly reflects the parties’ agreement. Any additional clauses are necessarily incidental to that agreement. It may thus be incorporated into my Order.

[5] Other orders issued by this Court address points for which there is no genuine issue requiring a trial. These may be incorporated into a final order.

[6] In May 2023, Justice Myers ordered the Applicant to shoulder 100 percent of section 7 expenses. I am not persuaded that this provision should be turned into a final order. I find that there remains a genuine issue for trial: is there a juristic reason that the parties should not share such expenses on a proportionate to income basis.

[7] Many times over the life of this case, the Applicant has behaved wholly inappropriately. Indeed, she now faces criminal proceedings. Her bad choices, however, are separate from the question of whether the parties should share section 7 expenses.

[8] The Respondent father is not penniless. He hundreds of thousands of dollars in bank accounts and investments, and real estate worth millions. For years he has declined to pursue gainful employment. It at least arguable that he has failed to respect his obligation to become self-sufficient. To permanently relieve him of his responsibility to contribute to the children’s section 7 expenses would, in effect, reward him for that failure.

[9] The question of section 7 expenses, therefore, is not amenable to summary judgment relief.

[10] The Respondent’s request to strike the Applicant’s pleadings is granted in part. Kim’s pleadings will be struck to the extent that they deal with the properties and financial issues. I decline to strike her pleadings as they relate to other issues.

[11] The Respondent’s request that Kim shall not be entitled to seek further relief from this Court is granted in part. Kim may not seek further relief for so long as she remains in breach of disclosure orders.

[12] This Long Motion was not necessary. The Respondent is entitled to his costs.

BACKGROUND

[13] After signing a marriage contract, the parties married in 1999. They separated in 2020. They have four children: S. born 2011, L. born 2003, A. born 2006 and B. born 2010.

[14] The parties own two properties: 77 Chestnut Park Road, Toronto (“the Toronto property”) and 5805 5th Line, Hillsburgh, Ontario (“the country home”). When they are not at boarding school or university, or having parenting time with Kim, the children live with Martin.

[15] Kim commenced an Application in January 2022. She has represented herself since September 2022.

[16] The parties’ disputes have been subject to various court orders and endorsements including:

a. An order of Justice Horkins issued on October 13 2022, stating, inter alia, that the youngest child, B., would reside primarily with Martin who would also have sole decision-making; supervised parenting for Kim and a section 30 assessment (I accept that the latter was never completed due to Kim’s lack of cooperation).

b. The May 2023 temporary order by Justice Myers described earlier.

c. The April 2024 endorsement by Justice Maxwell dealing with the partition and sale of the Toronto property and the country home.

[17] This motion relates to all three orders but it primarily focuses on (b) and (c).

[18] While it is unnecessary to detail all of the case history, Kim has behaved in erratic and unpredictable ways that often cause distress to other people. For example, she has sent inappropriate and at times threatening emails and letters to court staff and judges of this Court. Judges have noted her lack of insight into her actions.

[19] Kim currently faces three separate criminal proceedings relating to assault, uttering threats and criminal harassment. All of the alleged victims are related in some way to the parties’ dispute.

[20] A sense of how the Applicant engages in litigation is captured by the materials she filed for this hearing. I acknowledge that she objected to this Long Motion, saying that she has been waiting for a trial “for years”. The Applicant then filed the following:

a. A seven-page document that, while entitled a “factum”, contains virtually no responses to the pertinent legal and factual issues. The document instead reflects the Applicant’s grievances against the court system including prior Orders of this Court. For example, she describes Justice Myers’ order as “full of human rights violations” and, in fact, written by her husband’s lawyer. The Applicant adds:

“It's true that I told Judge Maxwell I was fine with Martin Abell getting the house ready for sale and selling it but it then became clear that [Respondent’s counsel] was going to help himself to the proceeds from the sale. I asked to bring in an accountant but I think Judge Maxwell could see their intention as well so she didn't sign their request.” (emphasis added)

b. A Form 14C response to the Notice of Motion wherein the Applicant alleges multiple breaches of her constitutional rights; accuses the Respondent of lying on numerous occasions; and asks for “a BIG, in person, TRIAL, in which I may bring witnesses in excess of what the court usually allows.” The Applicant also raises a new concern – the Respondent was not properly divorced at the time of the parties’ marriage – and requests an annulment.

c. A Form 14A Affidavit largely devoted to the above request for an annulment, although it also makes some incidental claims regarding child support and section 7 expenses.

[21] At the hearing, Kim declined to offer oral submissions, stating that she had “nothing to add”.

ANALYSIS

a. Does Justice Maxwell’s April 24 endorsement reflect an agreement between the parties that I can incorporate in an order?

[22] The April 2024 appearance before Justice Maxwell came about after Martin sought leave to bring a long motion to deal with what he says is the parties’ final outstanding issue: settlement of their jointly owned properties.

[23] Martin was granted a motion date following the parties mandatory attendance at an urgent case conference on April 24. After that conference, Justice Maxwell issued the following endorsement:

[2] The parties are in agreement that the Toronto home is to be listed for sale. The parties reached agreement on a deadline by which the home is to be listed for sale, a timetable and terms for the Applicant’s attendance at the Toronto home to collect her belongings, the Respondent’s exclusive possession of the Toronto home pending sale, The Respondent’s sole carriage over all matters related to the listing and sale of the Toronto home, and the division of proceeds of sale.

[3] The parties also reached agreement that the Respondent shall have exclusive possession of the country home and, subject to the Respondent obtaining an updated appraisal of the country home, the Respondent shall have the option to purchase the Applicant’s interest in the country property within three (3) months of the distribution of proceeds of sale from the Toronto home.

[4] Order to go in accordance with a draft order...for my signature.

[24] Martin’s counsel then prepared a Draft Order. Upon receiving it, Kim crossed out several terms. The parties returned before Justice Maxwell on June 6 and June 10 when Kim said that she was in agreement with the terms set out in Justice Maxwell's Endorsement but would still not agree to the draft order as prepared by Martin's counsel. This Long Motion followed.

[25] Counsel for the Respondent seeks to have the Draft Order incorporated into an Order of this Court. He points to prior decisions which hold that, as long as its essential terms have been agreed to, an agreement reached between parties is binding even if not set out in an agreement signed by the parties or a court order: Bogue v. Bogue, at para. 12.

[26] The Respondent also referenced a Manitoba Court of Appeal decision that says: “[I]f agreements at case conferences are to mean anything, they have to be respected and honoured by the court and enforced by the court and a motion for summary judgment is one of the tools to do that.": Dhalla v. Dhalla, 2020 MBCA 69, at para 21.

[27] The Respondent cites Rule 18(13) of the Ontario Family Law Rules O. Reg. 114/99 (“Family Law Rules”) which states: “if a party to an accepted offer does not carry out the terms of the offer, the other party may make a motion to turn the parts of the offer within the court's jurisdiction into an order.”

[28] Rule 2(2) of the Family Law Rules also express a cardinal directive to this Court: to deal with cases justly.

[29] I conclude that there is both statutory and jurisprudential support for this Court to incorporate into an Order the terms of an agreement reached at a case conference. To the extent that any authority relates to an “offer” made by one party, I believe it is analogous to the context of a case conference where parties often reach an agreement after negotiations and discussions that do not involve formal offers to settle.

[30] Moving to the gist of the April 24 conference, for the following reasons I am persuaded that the Applicant did agree to sell the jointly owned properties.

[31] First, the existence of an agreement was inherent in Justice Maxwell’s endorsement and Kim provided no evidence why Justice Maxwell would have been under any misapprehension about it.

[32] Second, the transcript from the case conference amply supports such an agreement at, inter alia, pages 7-10 (Exhibit “D” to M. Abell Affidavit July 5, 2024). See, as well, pages 27-28:

MR. COLE: ...So perhaps we could give him the option to purchase it and give him the exclusive possession of the use of the property between now and then and the price to be the, the price to be determined in accordance with appraisals at that time and any accounting advice that is, that is obtained, something along that line.

THE COURT: Ms. Abell?

KIM DALGLISH ABELL: That’s fine, Your Honour.

THE COURT: Okay. So you would be content today to commit, because this is an order. Right?

KIM DALGLISH ABELL: Okay.

THE COURT: So whatever happens today you'll be bound by[.]

[33] At several points in the conference the Applicant insists that she has no opinion about a term or seeks to have the Court make a decision for her.

[34] In sum, the case conference transcript reveals no objection by the Applicant to the substance of the Draft Order.

[35] Third, the transcript is confirmed by Kim’s statement in her factum filed for this motion that: “I told Judge Maxwell I was fine with Martin Abell getting the house ready for sale and selling it.”

[36] Fourth, in her Application Kim herself sought the partition and sale of both properties.

[37] Given the above uncontested facts, I am persuaded on a balance of probabilities that: the parties reached an agreement to sell their jointly owned properties; their agreement was endorsed by this Court; and it was left to the parties to prepare a Draft Order reflecting the agreement’s terms.

b. If the answer to “a” is “yes”, does the Draft Order fairly reflect the agreement?

[38] The next question is whether the Draft Order prepared by the Respondent after the case conference accurately captured the parties’ agreement. There is no question that the Order is much longer than Justice Maxwell’s endorsement. Because of this, I asked Respondent’s counsel to take me through every clause and identify its relation to the original endorsement. I am satisfied that each provision in the Draft Order either corresponds exactly to Justice Maxwell’s endorsement or is necessarily incidental to its execution.

[39] As just one example, Justice Maxwell’s endorsement states: “The parties reached agreement on the Respondent’s sole carriage over all matters related to the listing and sale of the Toronto home[.]” The Draft Order expressed this as:

Martin shall have sole carriage of the sale of the matrimonial home. Martin shall have the sole authority to make all decisions and to sign all documents with respect to the listing agent and real estate lawyer, listing date, staging and repairs, listing price, sale terms, acceptance/rejection of offers, closing date, and any other matters relating to the listing and sale of the matrimonial home. Martin shall list the matrimonial home in accordance with the recommendations of the listing agent.

[40] Such language merely expresses with greater clarity the agreement regarding the sale so as to enable its effective enforcement. I am satisfied that no provision in the Draft Order deviates from this pattern. The Applicant expressed no specific objection to the Draft Order in her written materials save for the accusation that Respondent’s counsel would somehow profit from it in a nefarious manner. I reject that claim on its face.

[41] Therefore, the Respondent’s request that the Draft Order be incorporated into an Order of this Court is granted.

c. If the answer to a or b is “no”, is the Applicant entitled to summary judgment relief with respect to the disposition of the two properties?

[42] Given my previous answers, it is unnecessary to answer this question. However, in the interest of completeness, I will address it. In brief, I would also grant this head of relief via summary judgment.

[43] The test for granting summary judgment is that there is no genuine issue for trial. In determining the existence of a genuine issue, the Court shall consider the evidence of the parties and may exercise its discretion to weigh evidence, evaluate credibility, and draw reasonable inferences: Family Law Rules, r. 16.

[44] The evidence on a summary judgment motion need not be equivalent to that at trial. It is enough if the evidence leaves a judge “confident that she can fairly resolve the dispute”: Hryniak v. Mauldin, 2014 SCC 7 at para 57.

[45] Summary judgment relief must be considered in light of Rule 2(2) and (3) of the Family Law Rules, which provides that the primary objective of the Rules is to ensure that cases are dealt with justly; and in a manner that is fair to all parties, saves time and expense, and is responsive to a case’s importance and complexity.

[46] Pursuant to the Partition Act, any person interested in land in Ontario can bring an action or make an application for partition of such, or for its sale, under the direction of the Court: Partition Act, RSO 1990, c.P.4 s.3(1). The properties at issue here are clearly encompassed under the Act. Indeed, as stated above, the Applicant herself originally sought their partition and sale.

[47] The Respondent filed extensive pleadings on this motion to show why the properties should be sold and why the Respondent should have sole carriage to do so. His reasons include:

a. The properties are jointly owned and, thus, the Respondent has a prima facie right to seek their sale;

b. The Applicant has not shown any sufficient reason why an order for partition and sale ought not be made;

c. The Respondent has filed materials, which the Applicant has not contested, to show that a partition and sale is required to meet his financial needs and circumstances;

d. Due largely to the Applicant’s unpredictable reactions and responses, the parties cannot cooperate effectively to enable a partition and sale. This warrants dispensing with the need to obtain the Applicant’s consent, and entrusting sole carriage to the Respondent. It would be contrary to the underlying purpose of the Family Law Rules to require the Respondent to wait for the Applicant to actually breach an order before seeking the Court’s intervention.

[48] One provision in the Draft order requires Kim to sell her interest in the country home to Martin. This relief is not automatically available under the Partition Act. The Respondent has explained that this provision would ensure that Martin will be able to retain the country home which has great emotional and family resonance for him.

[49] In support of this provision, the Respondent says that this Court has jurisdiction to enforce personal obligations between parties through an in personam order.

[50] This part of the argument for summary judgment relief is distinct, in that it relies on a particular factual and legal context that, ordinarily, might present an issue for trial.

[51] Here, it is important to note the state of the Applicant’s pleadings. As described above, the Applicant has offered no counter-argument, or competing facts, to virtually anything filed in this motion. Nor did she take advantage of the opportunity to make oral submissions.

[52] As a result, I find that given the Respondent’s uncontested arguments, which rely in great part on the agreement reached at the case conference, there is no genuine issue for trial on this point either.

[53] As result, had it been necessary to reach the summary judgment question, I would grant the Respondent’s request for relief.

c. Should the prior temporary order of Justice Myers be turned into a final one?

[54] The Respondent seeks summary judgment relief to make final Justice Myers’ temporary order dated May 25, 2023 that the Applicant pay 100 percent of the section 7 expenses for the four children so long as they remain children of the marriage including but not limited to:

a. Post-secondary education and living costs

b. Tuition and other expenses for boarding school

c. Counselling for the youngest child, B.

d. Extra-curricular activities and

e. Uninsured medical and dental expenses

[55] Section 7(2) of the Federal Child Support Guidelines states as a guiding principle that parties must contribute to “special or extraordinary expenses” for their children in proportion to their income.

[56] Courts have discretion to depart from this presumption of shared responsibility. In his materials, the Respondent notes that Courts have done this when one of the parents is “significantly wealthy”: Toscano v. Toscano, 2015 ONSC 487; Archibald v. Archibald 2007 ABQB 486. The Supreme Court of Canada has said that in the context of “high income earners”, expenses that might appear unreasonable in other contexts become reasonable: Francis v. Baker.

[57] The Respondent argues that where there is a significant financial imbalance between the parties, courts often dispense with the requirement that section 7 expenses be shared. He urges me to recognize that situation here and, on that basis, find that there is no genuine issue for trial about section 7 expenses.

[58] The Applicant is a member of a very wealthy family. On the best evidence available she has access to, at the very least, tens of millions of dollars. She has not disputed that between March 2022 and September 2023, she purchased over $5 million in real property with no associated debt.

[59] Nevertheless, the problem with deciding this issue on the basis of summary judgment is that the Respondent is not without resources of his own which are likely to appreciate significantly.

[60] The Respondent’s assets include:

a. Bank accounts and investments of approximately $245,000.

b. Joint ownership of 55 Chestnut Park which is worth many millions of dollars.

c. Joint ownership of the country home which the parties have agreed to value at $2.7 million.

d. A working farm adjoining the country home the value of which was not provided but which likely is worth at least hundreds of thousands of dollars.

[61] I have examined the cases provided by the Respondent where the Court dispensed with the requirement to share section 7 expenses. It is true that in some of them, both parties had net worth in the millions: Toscano, *supra*. In most, however, the receiving spouse had a far more modest income and few financial resources, e.g., Archibald, *supra* where the mother earned less than $75,000, or Debora v. Debora where the mother earned $40,000 as a teacher.

[62] Counsel’s argument regarding Martin’s income struck me as somewhat self-serving. He noted that while Martin may not have made the most prudent choices in the past, that fact is irremediable. Martin is 62, has not worked in his most remunerative profession (a commodities trader) for some two decades and is unlikely to ever again attain a reasonably high income.

[63] I do not find these arguments persuasive. At the very least, they do not satisfy me that there is no genuine issue for trial. I am bolstered in this conclusion by Justice Myers’s remarks in 2023:

Ms. Dalglish is a woman of extraordinary wealth. Mr. Abell seems to content himself operating a money-losing farm property for part of the year. He knows he has a duty to try to become self-sufficient ....Mr. Abell is asset rich if cash poor.

[T]his is an interim motion. It is still early in the litigation. [emphasis added]

[64] These comments were made just over a year ago. To be sure, my order today may well resolve the parties’ dispute which is all to the good. But not every issue in this case has a sufficient evidentiary record to permit its final resolution. The issue of section 7 expenses, I conclude, is one of them.

d. Should the Applicant’s pleadings be struck?

[65] The Respondent seeks numerous discretionary remedies:

a. That Kim's pleadings be struck and all of Kim's claims (except for her claim for a divorce) be struck.

b. That Kim shall not be entitled to any further Orders from the Court.

c. That Kim shall be precluded from taking any further steps in this proceeding or bringing any further motions in this proceeding.

d. That Kim shall not be entitled to any further notice of steps in this case. She shall not be entitled to participate in the case in any way. The Court shall deal with the balance of the issues in this case in Kim's absence.

e. That Martin may proceed with an uncontested trial on the basis of Affidavit evidence with respect to all remaining issues.

[66] To support this extensive list, Martin has presented a detailed and disturbing account of Kim’s actions throughout these proceedings. He read into the record a number of messages Kim sent to Martin which contained violent and offensive statements about Martin and third parties.

[67] Many of the details of Kim’s troubling behaviour are addressed in very thorough reasons issued by Justice Horkins in 2022. In his 2023 endorsement, Justice Myers noted that Kim lacks insight into her actions.

[68] In court before me, Kim’s behaviour was not disruptive. Prior to the hearing, however, Kim sent several emails to court staff that included inappropriate accusations about them and the Court. In addition, the materials she filed reflected her often illogical reasoning.

[69] Due to her behaviour over the last several years, the Respondent asks this Court to sanction the Applicant in a very serious way. I understand this request.

[70] At the same time, the Court must remain measured in its approach to even the most challenging litigants. And it must refrain from granting other parties relief that is legally unmerited.

[71] Kim has already experienced consequences for her behaviour. In 2022, Justice Horkins granted primary parenting and sole decision-making to Martin. In 2023, Justice Myers issued a temporary order assigning 100 percent of section 7 expenses to Kim, as well as the maintenance costs for both properties.

[72] My order today removes a large source of continuing conflict between the parties. Martin will have exclusive possession of the jointly owned properties and sole carriage for ensuring their sale.

[73] Kim’s posture regarding parenting has not always been consistent. But she exercises parenting time even now – on the day of this hearing the youngest child, B., was staying with her. Given that fact, I will not deprive her of all future opportunity to address parenting issues. I find that this would not be in the children’s best interests.

[74] Regardless of how problematic Kim’s behaviour has been, that does not address all of Martin’s responsibility. I have already concluded that a final order relieving Martin of any future share of section 7 expenses is unjustified. It is similarly inappropriate to permit Martin to bring an uncontested trial for all remaining issues when that might include the validity or unconscionability of the parties’ marriage contract.

[75] Some of Kim’s actions are serious enough to have triggered criminal proceedings. Those proceedings are separate from any relief ordered in this Court. It is not this Court’s role to mete out consequences for any alleged unlawful behaviour.

[76] It is, however, entirely appropriate for this Court to consider how Kim’s choices and actions have negatively affected the parties and their children, this Court, and its staff. For example, this proceeding was entirely unnecessary. For forcing Martin to bring this Long Motion, Kim will have to pay significant costs.

[77] I am persuaded that it is appropriate to strike Kim’s pleadings insofar as they address property.

[78] Kim shall not be entitled to bring any motions nor seek any relief from this Court insofar as they relate to property.

[79] I decline to grant the Respondent’s request as it relates to:

a. Parenting

b. Section 7 expenses

c. The parties’ marriage contract

[80] However, Kim’s further participation in such issues depends upon her compliance with the rules. For as long as Kim is in breach of any orders, she shall not be permitted to seek relief from this Court.

[81] Given my disposition of the issues raised in these proceedings, it is unnecessary to grant Martin’s request for an uncontested trial.

d. Other Relief Requested

[82] Paragraph 2 of the Order of Justice Horkins dated October 13, 2022 that Martin shall have sole decision-making with respect to decisions regarding B.’s health, education, and extra-curricular activities shall continue.

[83] The Applicant’s claim for Divorce shall be severed from corollary relief.

[84] After preparing these reasons, I asked Martin’s counsel to provide a bill of costs. An offer to settle prior to this Motion had been filed. Given Kim’s lack of participation in this motion I determined that it would not be useful to permit her a reply.

[85] Martin prevailed on this motion. I did not grant every request, but he certainly prevailed on numerous items set out in his offer.

[86] In deciding on a quantum of costs, I am to consider inter alia:

a. the importance, complexity or difficulty of the issues;

I find that the issues were not especially complex but the process of the entire case has been extraordinarily difficult.

b. the reasonableness or unreasonableness of each party’s behaviour in the case;

Kim’s behaviour has been unreasonable. This Long Motion was unnecessary. Kim agreed to sell the jointly owned properties before Justice Maxwell, then changed her mind. She made no real reply in her materials and did not offer oral submissions. All of this suggests that this motion was an egregious waste of time and resources.

c. the lawyer’s rates;

The lawyers’ rates reflect their seniority. I am satisfied that the work was adequately distributed among the different members of the legal team.

d. the time properly spent on the case;

I find that this case required substantially more time because of Kim’s unpredictable behaviour.

Family Law Rules, *supra*, r. 24(11)

[87] The full costs claimed are $95,401.38 inclusive of HST and disbursements. Given that I ruled against the Respondent on some points, I find it appropriate to award costs of $71,551.04 which represents substantial recovery of 75%.

CONCLUSION

[88] In conclusion, I make the following order:

[89] The Respondent’s request for a final order to enforce the agreement regarding the jointly owned properties, reached between the parties at the case conference before Justice Maxwell on April 24, 2024, is granted.

[90] For clarity, I adopt and incorporate into this Order Paragraphs 1-12 from the Draft Order reproduced in the Respondent’s Offer to Settle filed prior to this Long Motion.

[91] The Respondent’s request that Martin’s sole decision-making with respect to decisions regarding B.’s health, education, and extra-curricular activities be continued is granted.

[92] Justice Myers’ May 25, 2023, temporary order regarding section 7 expenses shall continue. The Respondent’s request for a final order on section 7 expenses is dismissed.

[93] The Applicant’s claim for Divorce shall be severed from corollary relief.

[94] The Applicant’s pleadings regarding property shall be struck and she shall not be entitled to further relief regarding any property claims.

[95] For so long as the Applicant remains in breach of any orders of this Court, she shall not be entitled to seek relief from this Court, or to bring further motions.

[96] The Respondent’s request for an uncontested trial is dismissed.

[97] The Applicant shall pay to the Respondent costs of $71,551.04 inclusive of HST and disbursements.

Mathen, J. Released: August 28, 2024