Ruling On Motion In Writing

N. Edmundson, J.

[1] The Respondent, Timothy Weese, has brought a motion in writing seeking inter alia

a. An order pursuant to s.1(1) of the Family Responsibility and Support Arrears Enforcement Act characterizing the costs order per Justice N. Edmundson's July 10 2024 Endorsement as spousal support for the purposes of the Family Responsibility Office's enforcement of same.

b. An order pursuant to section 12 of the Family Law Act requiring the Applicant, Edith Jane Bonisteel, to preserve and restraining the Applicant, Edith Jane Bonisteel, from disposing, wasting, or encumbering the following property until further order of this Court:

a) 6 Athabaska Drive, Belleville, Ontario, K8N 425; and,

b) 45 Thomasburg Road, Thomasburg, Ontario, KOK 3H0;

c) Such other and further property as this Honourable Court specifies.

c. In the alternative and/or in addition to paragraph 2 above, an order pursuant to section 103 of the Courts of Justice Act and Rule 42 of the Rules of Civil Procedure registering a certificate of pending litigation on the following properties:

a) 6 Athabaska Drive, Belleville, Ontario, K8N 425; and,

b) 45 Thomasburg Road, Thomasburg, Ontario, KOK 3H0.

d. An order pursuant to Family Law Rule 1 (8) that the Applicant, Edith Jane Bonisteel, shall immediately comply with the orders of this Court as follows, failing which compliance her pleadings will be struck and this matter shall proceed by way of Uncontested Trial:

a) The Applicant, Edith Jane Bonisteel shall make total payment to the Respondent, Timothy Allan Weese, in the sum of $25,460.21 on or before September 18th, 2024, such sum representing the outstanding balance of the costs award per the July 10, 2024 Endorsement ($10,880.21) and temporary spousal support for the months of July, August, and September ($4,860.00 x 3 = $14,580.00); and,

b) The Applicant, Edith Jane Bonisteel shall provide to the Respondent, Timothy Allan Weese, a completed income assessment (calculation) report as required by the June 14, 2024 Endorsement on or before September 13, 2024.

e. An order directing Veritasa Law Office to release forthwith the $5,000.00 held in trust pursuant to the Court's Endorsement dated June 9, 2021 to the Respondent, Timothy Allan Weese as partial payment toward arrear and/or retroactive spousal support. If, for whatever reason, this amount cannot be released, the Veritasa Law Office is directed to provide their trust ledger statements and all correspondence related to the receipt of the trust funds delivered to their office by Templeman LLP in relation to the transfer of the Applicant's Edith Jane Bonsiteel's, file on or around May 2023 necessary for determining what portion of the net sale proceeds of the parties' jointly-owned property remain.

f. An order pursuant to Family Law Rule 24 for costs of this motion on a full recovery basis.

[2] The Applicant is a successful and experienced real estate agent. The Respondent is a retired teacher.

[3] The trial of this matter is set for four days commencing October 15, 2024.

[4] The Applicant, Edith Bonisteel, has not responded to Mr. Weese’s motion. While the motion is unopposed I must consider whether the requested orders meet the legal requirements.

Analysis

Costs for the support motion

[5] Item 1 is granted as the costs were awarded solely for the motion seeking temporary spousal support which resulted in my ruling of June 14, 2024 (s.1(1) of FRSAEA, 1996) .

Net sale proceeds of $5,000

[6] Item 5 is granted based on the affidavit evidence of the Respondent which establishes that the amount of $5,000 of net sale proceeds from the sale of the parties’ jointly owned property was to be held in trust pending further agreement or court order.

Preservation Order request

[7] Under s.12 of the Family Law Act (‘’FLA’’) a party may seek a preservation order in a case for an equalization payment (s.7) or a declaration as to ownership or possession of property (s.10). A preservation order may also be made under s.40 of the FLA in a case for support.

[8] The sections state :

In an application under section 7 or 10, if the court considers it necessary for the protection of the other spouse’s interests under this Part, the court may make an interim or final order,

(a) restraining the depletion of a spouse’s property; and

(b) for the possession, delivering up, safekeeping and preservation of the property.

The court may, on application, make an interim or final order restraining the depletion of a spouse’s property that would impair or defeat a claim under this Part.

[9] The general principles concerning preservation orders pursuant to s.12 of the FLA are described in Altman v. Altman, 2021 ONSC 6610, at paras. 41-49, referring to the decision of Broad J. in Popat v. Popat, 2021 ONSC 5194 (citing paras. 19 to 31 of Bronfman v. Bronfman, 2000 CanLII 22710 (ONSC)). The following principles are to be considered in matters concerning non-dissipation orders:

(a) the purpose of section 12 is to ensure that if the court does determine that an equalization payment is owing, there are sufficient assets available to satisfy that payment;

(b) a section 12 preservation order is not a Mareva injunction and accordingly, the very high legal threshold necessary to obtain such an injunction is not the standard to apply under section 12;

(c) the court does not issue orders restraining parties from dealing with property without some evidence, as opposed to bare allegations;

(d) any restraining order under section 12 should properly be restricted to specific assets, and there should be an onus on the party seeking the restraining order to show prima facie that he or she is likely to receive an equalization payment equal to the value of the specific assets;

(e) the Court will want to consider how likely it is that the moving party will receive an equalization payment. It will also want to consider the effect that granting, or not granting, such an order will have on the parties. The objective is to protect the spouse’s interests under the Family Law Act so that if a spouse is successful in obtaining relief under the Act there are assets available to satisfy that relief. Relevant to this exercise is an assessment of the risk of dissipation of the assets in existence prior to trial;

(f) there are certain cases where the factual record and the applicable legal principles make it very clear that a spouse will be entitled to an equalization payment in a particular amount. In such cases, considerable weight will be given by the court to this factor and perhaps less weight to the other factors.

(g) There are other cases where the facts and the law are disputed and complicated and in addition the record may not be fully developed as both sides may not yet have been in a position to obtain their experts’ reports on some of the more difficult valuation issues. Even if the reports have been obtained, it may be impossible for a court on an interim motion to assess with any degree of certainty which expert’s report will prevail at trial. In such cases the Court will want to go on and give serious consideration to the other factors, being the balance of convenience and the risk of dissipation prior to trial

[10] The Respondent’s NFP statement shows an equalization payment owing to him of at least $43,694.59. The Respondent has not yet received a family law valuation of the his Ontario Teacher’s Pension or a valuation of the Applicant’s survivor pension under the same plan. The pension is in pay. The Respondent has requested the valuation and provided valuation forms using the two dates of separation claimed by the parties. It is the Respondent’s position that the value of the survivor’s pension would increase the Applicant’s net family property which in turn would give rise to a higher amount owing to him as an equalization. That is an issue for trial.

[11] On June 14, 2024, I made an order for temporary spousal support to be paid by the Applicant to the Respondent in the monthly amount of $4,860.00 commencing March 1, 2024. The Applicant has not paid any support to the Respondent. Those outstanding arrears stand at $14,580.00. The costs award of $10,880.21 is to be enforced as spousal support resulting in a total of $25,460.21.

[12] As there is still an outstanding claim for retroactive spousal support, I also ordered that the Applicant was to obtain and provide an income assessment at her expense and provide it to the Respondent within 60 days. That report was to have been provided by August 13, 2024. It was not provided by the Applicant.

[13] The matter came back before me on July 10, 2024, to address the issues of

a. the Applicant’s ability to designate the Respondent as the beneficiary on her policy of life insurance as the Respondent had claimed an order designating him as beneficiary in the amount of $150,000 as security for the spousal support,

b. the costs of the temporary spousal support motion and

c. the establishment of a litigation schedule.

[14] The Applicant filed no materials. She had not provided any information or confirmation of the details of her policy or policies of life insurance to the Respondent and advised the court that she had cancelled her life insurance policy the previous week. I called a recess to allow her counsel to speak with her and to explain that she was in breach of the order (he was on Zoom, she was in person). Applicant’s counsel advised that she may be able to reinstate the policy and that she has a second policy. I made a further order that the Applicant is to provide to the Respondent the full details including the face amount and status of all insurance policies on her life. I also made an order that her spousal support obligation including arrears shall form a first charge on her estate. She has not provided the details of her life insurance policies to the Respondent or the court.

[15] Costs were set on consent in the amount of $10,880.21 all inclusive on July 10, 2024. She has not paid them

[16] A litigation schedule was set and included a TSEF conference originally set for September 5, 2024, and a settlement conference before me on September 13, 2024. The TSE conference was moved to August 16, 2024 before Justice McCarty. Her endorsement of that date states that the Applicant, Ms. Bonisteel, advised that she may be declaring bankruptcy and has not paid the ordered spousal support because she does not have any money. The confirmation form filed by her counsel refers to commencing the bankruptcy process for Ms. Bonisteel. Leave was granted for this motion to be brought by the Respondent to seek a lien or Certificate of Pending Litigation. The TSE Conference was adjourned to September 6, 2024 at which time the Applicant’s counsel was not present and a completed TSEF was not filed by the Applicant. The Applicant appeared in person with a TSEF that had at least some of the Respondent’s additions deleted.

[17] The Applicant filed no documents for the settlement conference set for September 13, 2024, despite the terms of the July 10, 2024 order which set out the specific required documents which were to be filed in accordance with the Family Law Rules. The settlement conference could not proceed. The trial date of October 15, 2024 was confirmed.

[18] This case was started in September 2020. The June 9, 2021 endorsement of Justice Robertson set out a consent order for the transfer of the matrimonial home from the Applicant to the Respondent. The Applicant refused to complete the sale. On motion of the Respondent on July 15, 2021, Justice Malcolm made an order dispensing with the requirement that the Applicant, Ms. Bonisteel, sign the Acknowlegment and Direction to effect the transfer of the property at 121 Sherry Court, Thomasburg to the Respondent, Mr. Weese.

[19] The Applicant has breached a number of orders and has demonstrated her reluctance and, at times, her refusal to follow the court orders made both for the transfer of property and the payment of spousal support and costs. She has not provided all required disclosure. She canceled her life insurance policy in the face of an order that she provide details which would have led to an order that she designate the Respondent as her beneficiary as security for the spousal support. When appearing in court on July 10, 2024 to address that issue she was defiant.

[20] The Respondent is claiming ongoing spousal support, a lump sum for retroactive spousal support and an equalization payment. It is clear from her actions to date that the Applicant is unlikely to co-operate with transfers to the Respondent if such are ordered.

[21] I find that the Respondent has shown on a prima facie basis that he is likely to receive an equalization payment and spousal support equal to the value of the specific assets, so far as those values can be ascertained given the Applicant’s failure to file complete financial information. Her financial statement filed in January 2024 and confirmed by affidavit in March 2024 lacks specifics and is incomplete.

[22] I have considered how likely it is that the Respondent, the moving party, will receive an equalization payment, and I have also considered the effect that granting, or not granting, such an order will have on the parties. As set out above, the objective is to protect the spouse’s interests under the Family Law Act so that if a spouse is successful in obtaining relief under the Act there are assets available to satisfy that relief. Relevant to this exercise is an assessment of the risk of dissipation of the assets in existence prior to trial.

[23] The specific value of the equalization likely to be made at trial is not clear cut. I have therefore given serious consideration to the other factors, being the balance of convenience and the risk of dissipation prior to trial. The Respondent has satisfied the onus of demonstrating that it is likely that the assets will be dissipated. It is also important to note that the Respondent has ongoing serious health concerns and that he does not have the resources to finance the trial.

[24] While a preservation order under s.40 of the FLA was not claimed in the Respondent’s answer or in this motion, the risk of dissipation as the Applicant approaches trial seems to be intensifying. In these circumstances I find that relief under s.40 is available to the Respondent. As set out above, I find that there is blameworthy conduct by the Applicant and the Respondent has produced evidence that his rights would be at risk in the absence of a ‘’non-depletion’’ order. The Applicant has refused to pay the temporary spousal support ordered on June 14, 2024.

Certificate of Pending Litigation

[25] Rule 42.01 of the Rules of Civil Procedure states :

42.01 (1) A certificate of pending litigation (Form 42A) under section 103 of the Courts of Justice Act may be issued by a registrar only under an order of the court. R.R.O. 1990, Reg. 194, r. 42.01 (1).

Claim for Certificate to be in Originating Process

(2) A party who seeks a certificate of pending litigation shall include a claim for it in the originating process or pleading that commences the proceeding, together with a description of the land in question sufficient for registration. R.R.O. 1990, Reg. 194, r. 42.01 (2).

Motion Without Notice

(3) A motion for an order under subrule (1) may be made without notice. R.R.O. 1990, Reg. 194, r. 42.01 (3).

Order to be Served Forthwith

(4) A party who obtains an order under subrule (1) shall forthwith serve it, together with a copy of the notice of motion and all affidavits and other documents used at the hearing of the motion, on all parties against whom an interest in land is claimed in the proceeding. O. Reg. 219/91, s. 4.

[26] A claim for an interest in land has been found to be sufficient to give rise to a CPL in the absence of inclusion of the request for the CPL in the originating process. See Chilian v Augdome Corp (1991), 1991 CanLII 7335 (ONCA) where the court stated that entitlement to a CPL does not necessarily require that the interest in the land in question be claimed directly by the plaintiff for itself. What is required is that an interest in land be in question in the proceeding.

[27] Contained in the Respondent’s Answer is a claim for a 50% interest in the rental property at 45 Thomasburg Road, Thomasburg, Ontario. An interest in land is therefore one of the issues to be dealt with at trial.

[28] The financial statement of the Applicant is dated January 23, 2024 and was confirmed by way of affidavit on March 1, 2024 in anticipation of the spousal support motion. The financial statement does not include a mortgage for the rental property although her monthly expenses for the rental property include an amount of $206 for that property. She states that the rental property was worth $275,000 on the date of valuation and has a current (January 2024) value of $215,000. The abstract shows a charge on the property of $60,600 as of May 28, 2012. While it can be anticipated that the mortgage is now lower, there is no evidence of the exact amount.

[29] I find that a CPL is appropriate on the Thomasburg rental property but not on the Applicant’s residence at 6 Athabaska Drive, Belleville, Ontario as there is no claim directly against that property.

FLR 1(8) Request to Strike pleadings

[30] FLR 1(8) provides direction on the the types of orders that may be made when a person fails to obey an order.

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

(a) an order for costs;

(a.1) an order to pay an amount to a party or into court as a penalty or fine;

(b) an order dismissing a claim;

(c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;

(d) an order that all or part of a document that was required to be provided but was not, may not be used in the case;

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

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

(g) a contempt order, if sought under rule 31. O. Reg. 322/13, s. 1; O. Reg. 261/24, s. 1.

[31] FLR 1(8.4) sets out the consequences of striking out certain documents :

If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:

The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
The party is not entitled to participate in the case in any way.
The court may deal with the case in the party’s absence.
A date may be set for an uncontested trial of the case. O. Reg. 322/13, s. 1.

[32] The Ontario Court of Appeal in Mullin v. Sherlock, 2018 ONCA 1063, affirmed in Manjunath v. Kuppa, 2024 ONCA 668, established a decision-making framework for assessing whether pleadings should be struck.

[33] The court must first determine if there has been a triggering event. As long as the court is satisfied that there has been a failure to obey an order “in the case or a related case” Rule 1(8) is triggered.

[34] Once a triggering event has been established the court should then determine whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8). The onus is on the non-complying party to show why it would be appropriate for the Court to exercise its discretion in their favour. The court's decision as to whether or not to exercise its discretion in favour of the non-complying party should take into account all relevant history of the litigation and the conduct of the non-complying party.

[35] If the court determines it should not exercise its discretion in favour of the non-complying party, it is then left with the very broad discretion as to the appropriate remedy under Rule 1(8). Relevant considerations include the proportionality of the sanction to the wrongdoing, the similarity of sanctions in like circumstances, the presence of mitigating or aggravating factors, and deterrence.

[36] I am satisfied in this case that there has been a series of triggering events as set out below.

a. On June 14, 2024, I released my ruling on the Respondent’s motion for temporary monthly spousal support commencing March 1, 2024. The Applicant has not paid any support to the Respondent. Those outstanding arrears currently stand at $14,580.00.

b. I also ordered that the Applicant was to provide an income assessment within 60 days to assist with the assessment of a retroactive spousal support claim. That report should have been provided by August 13, 2024; it was not provided by that date.

c. The July 10, 2024 date was set to address several issues one of which was to establish the Applicant’s ability to designate the Respondent as the beneficiary on her policy of life insurance as security for her spousal support obligation to the Respondent. The Applicant did not file any materials on the issue of her life insurance and on July 10, 2024, advised the court that she had cancelled her life insurance policy the week prior to the court appearance. It was clearly an intentional act aimed at defeating any order for a designation of her life insurance to secure the spousal support order. I ordered that she was to provide to the Respondent Tim Weese full details including the face amount and status of all insurance policies which she holds on her life. She has not done so.

d. Also on July 10, 2024, through counsel she consented to the costs being set at $10,880.21. Her counsel stated that the Respondent’s claim for costs was fair and reasonable. No payment terms were requested on her behalf and no payment schedule was set. She has not paid the costs award.

e. On July 10, 2024, I ordered that the Applicant’s counsel was to draft the formal order from that date as well as the order set out in my Ruling on Motion released on June 14, 2024, send them to Mr. Weese for approval as to form and content before submitting them to the court to be signed and issued within 30 days. That has not been done.

f. A litigation schedule was set which included a TSEF conference which was ultimately adjourned by Justice McCarty to September 6, 2024 at which time the Applicant’s counsel was not present and a completed TSEF was not filed by the Applicant despite the direction that she do so. The Applicant appeared in person with a TSEF that did not include the information provided by the Respondent.

g. A settlement conference was set before me on September 13, 2024. Settlement conference briefs, updated financial statements and draft orders for relief requested were ordered to be provided in accordance with the Family Law Rules. The Applicant filed none of those documents. The settlement conference could not proceed.

[37] These proceedings were initiated in 2020. There was a period of apparent inactivity between February 23, 2022 when Justice Malcolm’s settlement conference endorsement adjourned the matter to a motion on spousal support, entitlement and quantum, and a TSEF conference and the scheduling of such a motion in early 2024. The Respondent has referred to a number of factors including the Covid-19 pandemic and his illness. His temporary spousal support motion was scheduled for January 29, 2024 but adjounred by the court to March 14, 2024 when it was argued. The Respondent has a terminal illness and has suggested that the Applicant is deliberately delaying litigation progress.

[38] I find that based on the litigation history and the history of non-compliance with disclosure and payment orders the first step of the analysis has been triggered. Secondly, I find that the breach of orders is willful and voluntary. The Applicant has not met her disclosure obligations particularly in light of an upcoming trial which is scheduled to start on October 15, 2024. She filed no response to this motion to strike and therefore has not satisfied the onus on her to show why it would be appropriate for the court to exercise its discretion in her favour.

[39] She has simply refused to provide the ordered disclosure of details of her life insurance policy and cancelled it in the face of an order that she provide the information.

[40] She has provided no evidence of having made reasonsable efforts to comply or acceptable explanations for her breaches. I am concerned that her behaviour is an attempt to avoid the upcoming trial.

[41] The Respondent asks that I make an order striking the Applicant’s pleadings unless she complies with the orders for payments of the spousal support and costs award and provides a completed income assessment as ordered on June 14, 2024 by a set date. He also asks that if I make such an order that the matter shall proceed by way of an uncontested trial.

[42] In making my decision I have also considered Rule 2, specifically:

(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

(3) Dealing with a case justly includes,

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

(b) saving expense and time;

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

[43] The Applicant commenced these proceedings over four years ago and has not advanced her case. The Respondent is entitled to seek completion of this case. His position is that he needs the outstanding costs to be paid so that he can afford to retain his limited scope counsel to represent him at trial. That is a reasonable position and will likely result in a more efficient trial process ultimately saving both parties expense and time as required by Rule 2.

[44] I find that the Applicant has shown a willful lack of respect for the litigation process by not following payment orders or providing required disclosure. I find that the appropriate remedy is to strike the Applicant’s application, unless she satisfies the outstanding payment orders and provides the ordered income assessment by September 30, 2024. No other remedy would be appropriate or meet the the primary objective as set out in Rule 2.

[45] I have considered Rule 1(8.4) which sets out the consequences of striking out certain documents. I am not prepared to order an uncontested trial in the event that the Applicant chooses not to satisfy the above terms and her application is struck. Subject to the discretion of the trial judge, the Applicant shall have the right to attend and participate in the trial by cross-examining the Respondent and other witnesses, and to make submissions. She shall therefore have the opportunity to test the evidence put before the trial judge.

[46] Order to go as follows:

a. Pursuant to s.1(1) of the Family Responsibility and Support Arrears Enforcement Act the costs order of Justice N. Edmundson's July 10 2024 Endorsement shall be characterized as spousal support for the purposes of the Family Responsibility Office's enforcement of same.

b. Pursuant to section 12 of the Family Law Act the Applicant, Edith Jane Bonisteel, shall preserve and is restrained from disposing, wasting, or encumbering the following property until further order of this Court:

a) 6 Athabaska Drive, Belleville, Ontario, K8N 425; and,

b) 45 Thomasburg Road, Thomasburg, Ontario, KOK 3H0;

c. Pursuant to section 103 of the Courts of Justice Act and Rule 42 of the Rules of Civil Procedure a certificate of pending litigation shall be registered on the property located at 45 Thomasburg Road, Thomasburg, Ontario, KOK 3H0.

d. Pursuant to Family Law Rule 1(8) the Applicant, Edith Jane Bonisteel, shall comply with the orders of this Court as follows, failing which compliance her Application shall be struck:

a) The Applicant, Edith Jane Bonisteel shall make total payment to the Respondent, Timothy Allan Weese, in the sum of $25,460.21 on or before September 30, 2024, such sum representing the outstanding balance of the costs award set out in the July 10, 2024 Endorsement ($10,880.21) and temporary spousal support for the months of July, August, and September ($4,860.00 x 3 = $14,580.00); and,

e. Pursuant to Family Law Rule 1(8.4), in the event that the Application of Edith Jane Bonisteel is struck as set out in paragraph d. above, and subject to the trial judge’s discretion to allow additional participation, the Applicant shall have the right to participate in the trial as follows

a) cross-examining the Respondent and other witnesses, and

b) making submissions.

f. Veritasa Law Office shall release forthwith the $5,000.00 held in trust pursuant to the Court's Endorsement dated June 9, 2021 to the Respondent, Timothy Allan Weese as partial payment towards arrears and/or retroactive spousal support. If, for whatever reason, this amount cannot be released, the Veritasa Law Office is directed to provide their trust ledger statements and all correspondence related to the receipt of the trust funds delivered to their office by Templeman LLP in relation to the transfer of the Applicant's Edith Jane Bonsiteel's, file on or around May 2023 necessary for determining what portion of the net sale proceeds of the parties' jointly-owned property remain.

g. Costs of this motion are reserved to the trial judge.

“N. Edmundson, J”

Released: September 19, 2024

COURT FILE NO.: FC-20-00000241-0000

DATE: 2024-09-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Edith Bonisteel

and -

Timothy Weese

REASONS FOR DECISION

N. Edmundson J.

Released: September 19, 2024

Bonisteel v. Weese, 2024 ONSC 5194

Case Summary

Ruling On Motion In Writing

Analysis

Costs for the support motion

Net sale proceeds of $5,000

Preservation Order request

Certificate of Pending Litigation

FLR 1(8) Request to Strike pleadings

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 7

Legal Tests 2

Legislation 5