Endorsement

Introduction

The issue to be decided is the respondent’s (Ms. Stephenson’s) motion to amend her answer. The motion was brought over four years after the application was commenced.

The respondent seeks to amend her pleadings to assert trust claims in relation to the matrimonial home owned solely by the applicant, which was sold in 2021 pursuant to a court order that included terms dispensing with the respondent’s consent pursuant to s. 23 of the Family Law Act, said order also providing for each party to be paid a share of the net sales proceeds with the balance being held in trust.

The respondent submits that the amendment is necessary and in the interests of justice.

The applicant submits that the motion should be dismissed, relying on r. 11(3) of the Family Law Rules that the amendment would disadvantage the applicant in a way for which costs or an adjournment could not compensate.

It is noted, for clarification, that John Marques, Ms. Stephenson’s first husband, has been added as a respondent in relation to child support claims being made by Ms. Stephenson. The evidence is that the respondent Mr. Marques has not participated in this proceeding.

Unless otherwise indicated, any reference in these reasons to “respondent” means Ms. Stephenson, and any reference to “parties” means the applicant and Ms. Stephenson.

For convenience, in the balance of these reasons, I refer to the applicant as “Mr. Stephenson” and the respondent as “Ms. Stephenson”.

For reasons that follow, Ms. Stephenson’s motion is dismissed.

Background Including Procedural Background

The parties began to cohabit in 2014; they were married in 2015 and separated on October 1, 2019. The claim for divorce was severed from other claims, and the parties were divorced pursuant to a divorce order dated August 9, 2021.

The parties had no children together. Each party was divorced previously. Mr. Stephenson has two children from his previous marriage, and Ms. Stephenson has three children from her previous marriage.

On separation, Ms. Stephenson remained in the matrimonial home and continued to do so until it was sold.

Mr. Stephenson is a police officer for the Ontario Provincial Police, having been employed in that occupation for approximately 30 years. He deposes that he is currently in receipt of W.S.I.B. payments. Ms. Stephenson is self-employed as a financial advisor.

This case has been a high-conflict proceeding with a lengthy history. Currently, Hassan J. is the recently appointed case-management judge for this proceeding.

Although Ms. Stephenson’s initial affidavit fails to identify, in the body of the affidavit, the various sworn exhibits appended to her affidavit, I find that the exhibits themselves describe what they are, and I am not prepared to strike the exhibits as requested by Mr. Stephenson.

The affidavit evidence consists of a total of three affidavits [1]. Mr. Stephenson’s responding affidavit sets out the litigation history which is neither challenged nor disputed by Ms. Stephenson, and which includes the following:

a. The application was issued on July 3, 2020. Ms. Stephenson’s initial answer is dated August 10, 2020. A case conference was held in January 2021;

b. In March 2021, Ms. Stephenson served her first amended answer, which included adding the respondent John Marques as a party; Mr. Marques has not filed an answer;

c. Pursuant to a motion made by Mr. Stephenson, Nicholson J. ordered the matrimonial home to be sold pursuant to an order dated April 6, 2021. Nicholson J. remained seized of the issue regarding the sale of the matrimonial home and was required to make supplementary orders to facilitate the sale, including making an order approving an offer for the full asking price, and as noted earlier, making an order dispensing with Ms. Stephenson’s consent to the sale of the matrimonial home;

d. At a settlement conference held on September 15, 2021, Tobin J. ordered Ms. Stephenson to provide “… all disclosure already ordered, and documents and witness will-say statements she intends to rely upon in this case…” no later than February 25, 2022;

e. Mr. Stephenson deposes, without contradiction, that by February 25, 2022, no will-say statements, nor any evidence regarding Ms. Stephenson’s claims about the matrimonial home were provided;

f. On July 19, 2022, Tobin J. continued the settlement conference and ordered Ms. Stephenson to provide by August 31, 2022 the disclosure ordered on September 15, 2021 plus additional disclosure as specified in the order. An order also was made granting leave for oral questioning; the matter was adjourned before Tobin J. to September 13, 2022, with the parties to complete a joint Trial Scheduling Endorsement Form by that date. Regarding the disclosure ordered to be produced by Ms. Stephenson, it is noted that this is the third order for some of the disclosure;

g. A trial management conference was held before Tobin J. on September 13, 2022, and this case was set down for trial on the May 2023 sittings. Mr. Stephenson deposes that Ms. Stephenson sought leave to amend her pleadings to add a claim relating to the matrimonial home. That amendment was made September 27, 2022. This was the second time the answer was amended. The substance of the amendment was an allegation that Mr. Stephenson had failed to take reasonable steps to obtain the best price for the matrimonial home, and that he had failed to act in a commercially reasonable manner when selling the matrimonial home. This allegation, it is noted, was made notwithstanding that Nicholson J. had remained seized of the issue relating to the sale of the matrimonial home and Nicholson J. had approved, by order, the sale price of the matrimonial home. Further, this amendment, though it referred to the matrimonial home, made no reference to any trust claims;

h. Mr. Stephenson deposes that at the trial readiness court (assignment court) on May 9, 2023, that he was willing to proceed to trial despite Ms. Stephenson not having complied with disclosure orders and the Trial Scheduling Endorsement Form, but that Sah J. struck the matter from the trial list referring to Ms. Stephenson’s outstanding witness affidavits, disclosure, and valuations. The relevant part of the endorsement of Sah J. states: “Matter not ready for trial—affidavits not served per TSEF, valuations not complete, disclosure is outstanding by Respondent.” While the endorsement is clear that there is outstanding disclosure from Ms. Stephenson, it is noted that Ms. Stephenson does not dispute Mr. Stephenson’s evidence that the reference in the endorsement to affidavits not being served and valuations not being completed, relates to Ms. Stephenson’s failure to serve affidavits and her failure to provide valuations that were completed;

i. Oral questioning of Ms. Stephenson was conducted on August 14, 2023;

j. A further trial management conference was held before Tobin J. on December 7, 2023; the order made on that date by Tobin J. included placing the case on the May 2024 trial sittings and granting leave to Ms. Stephenson to bring a motion to amend her pleadings, “… to advance a resulting trust claim” with that motion to be returnable January 24, 2024;

k. Mr. Stephenson attended for his oral questioning on December 15, 2023. On that same date, Ms. Stephenson served her motion to amend her pleadings for a third time, as permitted pursuant to Tobin J.’s order, asserting trust claims relating to the matrimonial home. No affidavit in support of that motion was served;

l. On January 24, 2024, an order was made removing Ms. Stephenson’s counsel, Mr. Clayton, as counsel of record. On that date, there was also a motion that had been brought by Mr. Stephenson to strike Ms. Stephenson’s pleadings. Ms. Stephenson sought an adjournment of the motion to strike. Mr. Stephenson objected to the adjournment, but Perfetto J. ordered that the motion to strike would be argued February 21, 2024, with or without Ms. Stephenson having counsel, and if the motion to strike fails, that Ms. Stephenson’s motion to amend pleadings will follow;

m. On February 21, 2024, the endorsement of Moore J. confirms that Ms. Stephenson’s motion to amend was not heard as there was no affidavit in support of that motion;

n. In relation to Mr. Stephenson’s motion to strike, Moore J. granted Ms. Stephenson’s request for an adjournment, despite Mr. Stephenson’s objection, noting that Ms. Stephenson was recently self-represented, and describing the adjournment as “… one final opportunity to provide the required disclosure.” Moore J. adjourned this matter back before herself on March 6, 2024;

o. After hearing the motion to strike on March 6, 2024, where Ms. Barsalou (counsel) appeared as agent for Ms. Stephenson, Moore J. on March 13, 2024 dismissed Mr. Stephenson’s motion to strike but ordered various disclosure to be made by Ms. Stephenson on or before March 18, 2024. Moore J. noted that, although not completely successful on his motion, Mr. Stephenson did enjoy some measure of success, and Moore J. ordered the parties to agree to a reasonable amount of costs payable to Mr. Stephenson, failing which written submissions could be made;

p. At the trial readiness court on April 30, 2024, both parties, through their respective counsel, advised the court that the parties were ready to proceed to trial during the May 2024 trial sittings;

q. On June 4, 2024, this matter, not having been reached during the May 2024 sittings, was traversed to the September 2024 sittings pursuant to the order of Sah J. Mr. Stephenson deposes, without contradiction, that Ms. Barsalou advised the court that she was not available for the month of June 2024, and that Ms. Barsalou’s unavailability was made known to Mr. Stephenson’s counsel only the day before.

r. Mr. Stephenson deposes that Ms. Barsalou “… was removed from the record in July 2024.” Although it is not clear whether this was pursuant to an order or pursuant to a notice of change in representation, Ms. Stephenson does not dispute this evidence, and Ms. Stephenson does not dispute that she has been self-represented since then;

s. A further trial management conference was held on September 23, 2024. The endorsement of B.A. MacFarlane J. includes that the parties “… narrowed the witnesses and reduced the trial time estimates.” The parties were required to circulate, and complete, the Trial Scheduling Endorsement Form as discussed and forward it for review to B.A. MacFarlane J.

At the trial readiness court on October 1, 2024, Mr. Stephenson deposes, without contradiction, that both parties advised the court they were ready to proceed. The endorsement of Sah J. dated October 1, 2024 confirms that this matter was ready to go with an estimate of seven to ten days for trial.

The parties then encountered issues regarding completion of the Trial Scheduling Endorsement Form from the trial management conference held on September 23, 2024. The endorsement of B.A. MacFarlane J. dated October 7, 2024 notes that Ms. Stephenson indicated that she may wish to bring motions, including an amendment to her pleadings. Leave was granted to Ms. Stephenson to bring a motion to amend prior to trial. The endorsement provided that the parties may also seek leave from the trial judge to bring motions at the outset of trial, and if such motions are expected, that the materials are to be served and filed prior to trial.

Ms. Stephenson then served three motions all dated October 9, 2024. These motions came before Hassan J. on October 16, 2024. Hassan J.’s endorsement can be summarized as including the following:

a. The motions are: i. To strike Mr. Stephenson’s pleadings; ii. To add Mr. Stephenson’s partner as a party; and iii. To amend the respondent’s answer to add a trust claim relating to the matrimonial home;

b. Ms. Stephenson had been granted leave to bring a motion to amend her answer; the other motions were to be brought only with leave of the trial judge;

c. The additional motions would potentially change the issues, parties, and pleadings;

d. That there is a real risk that this matter will become unmanageable, if it has not already;

e. The motions were adjourned to await the appointment of a case-management judge;

f. The case was removed from the October 2024 trial sittings; and

g. Ms. Stephenson was ordered to pay costs in the amount of $500.

As noted previously, Hassan J. assumed the role of case-management judge. On December 9, 2024, Hassan J. adjourned Ms. Stephenson’s motion to amend to January 22, 2025.

Ms. Stephenson’s Current Motion to Amend

Ms. Stephenson claims the following relief in her motion:

a. Amending her pleadings to include claims of “constructive trust and/or resulting trust based on unjust enrichment” regarding the matrimonial home;

b. An adjournment of the trial to allow Ms. Stephenson to obtain “expert evidence regarding the property’s value and potential damages”; and

c. An order permitting Ms. Stephenson to file an expert report “in support of the unjust enrichment claim”.

Ms. Stephenson’s brief affidavit in support of her motion to amend explains that Mr. Stephenson has been unjustly enriched based on Ms. Stephenson’s financial and non-financial contributions to the matrimonial home. Ms. Stephenson deposes that she has made mortgage payments, has paid utilities, insurance, property taxes, and has contributed towards physically maintaining the matrimonial home. Ms. Stephenson deposes that despite her “significant contributions”, that Mr. Stephenson has retained the full benefit of the matrimonial home “and other property” without fair compensation or division, unjustly enriching him.

Regarding her resulting trust claim, Ms. Stephenson relies on her “substantial contributions” to the matrimonial home, and she deposes that she has a beneficial interest in the matrimonial home “and other relevant assets”, and that a resulting trust should be imposed to reflect her contribution. Ms. Stephenson does not elaborate on what is meant by “other relevant assets”.

Ms. Stephenson did not provide a draft answer containing the proposed amendments.

In his responding affidavit, Mr. Stephenson deposes that he is the spouse who paid a greater share towards the matrimonial home purchase and expenses.

While the affidavit material is insufficient to make any determination as to each spouse’s financial contribution towards the matrimonial home, Mr. Stephenson points out the following, which is not disputed by Ms. Stephenson in her reply affidavit:

a. Ms. Stephenson does indeed benefit from Mr. Stephenson’s ownership of the matrimonial home through the process of equalization of net family properties;

b. Pursuant to the order of Nicholson J. dated April 6, 2021 (previously referred to), each party was to receive on the sale of the matrimonial home 25 percent of the net sale proceeds (said 25 percent allocation being on a without prejudice basis), with the balance of the sale proceeds to be held in trust pending further order or agreement of the parties;

c. Both parties each received $146,857.65 from the net sale proceeds pursuant to the aforesaid order, and the balance of the net sale proceeds remains in trust;

d. Mr. Stephenson has prepared a net family property statement showing an equalization payment due to Ms. Stephenson in the amount of $176,095.96, with approximately $29,000 still payable subject to post-separation adjustments and costs;

e. Mr. Stephenson deposes that any payments towards the matrimonial home made by Ms. Stephenson after separation will be dealt with via the post-separation adjustments that include Mr. Stephenson’s claim for occupation rent; and

f. Ms. Stephenson did not contradict Mr. Stephenson’s calculation of the equalization payment, nor did Ms. Stephenson provide any evidence as to her calculation of the equalization payment.

To add some context as to the extreme level of acrimony in this case, Mr. Stephenson’s affidavit alleges that Ms. Stephenson engaged in bad faith conduct. Mr. Stephenson complains about “baseless allegations” and professional complaints made by Ms. Stephenson. This non-exhaustive list, according to Mr. Stephenson, includes:

a. Making numerous false allegations against Mr. Stephenson to the police, which led to Ms. Stephenson being charged with public mischief in or about May 2021, to which Ms. Stephenson pleaded guilty and entered a mental health diversion programme;

b. Sending an email to the London Free Press editor-in-chief, identifying Mr. Stephenson as an O.P.P. police officer and alleging that Mr. Stephenson assaulted Ms. Stephenson, stole her vehicle, and tried to extort her; and,

c. Filing professional complaints against the parties’ court-appointed real estate agent, filing complaints against Mr. Stephenson with his employer, and filing a complaint with the Law Society of Ontario against Mr. Stephenson’s family lawyer, which Mr. Stephenson deposes was closed without requiring comment from his lawyer.

Despite the detail contained in Mr. Stephenson’s responding affidavit regarding this conduct, Ms. Stephenson, in her reply, addresses these allegations very briefly, denying generally that she has behaved in bad faith. Ms. Stephenson does not address, or deny, the various detail deposed to by Mr. Stephenson for each specific allegation.

Mr. Stephenson also deposed that Ms. Stephenson has a long-standing theory that Mr. Stephenson’s ex-girlfriend was involved in “illegal activity” and allegedly ruined Ms. Stephenson’s credit rating, which in turn resulted in title to the matrimonial home being registered in Mr. Stephenson’s name, rather than jointly. This theory, according to Mr. Stephenson, is the impetus behind the current motion to amend.

As some proof of the foregoing, Mr. Stephenson refers to the draft amended answer appended to Ms. Stephenson’s motion to amend, returnable January 24, 2024, which included allegations that:

a. Ms. Stephenson encountered credit problems caused by “illegal activity related to her credit card” by Mr. Stephenson’s ex-girlfriend;

b. That this credit issue could not be cleared up prior to the scheduled closing of a property that the parties were purchasing in 2015, resulting in title being registered in Mr. Stephenson’s name on a “temporary basis”; and,

c. That the credit rating issue still was not resolved four years later, in 2019, when the parties purchased the matrimonial home, resulting, again, in title being registered in Mr. Stephenson’s name rather than jointly.

Mr. Stephenson disputes these allegations, and his affidavit contains a lengthy list of information, records, and documents which he alleges that Ms. Stephenson has failed to provide in support of her allegations, despite orders and requests for same.

In her reply, Ms. Stephenson responds only briefly to Mr. Stephenson’s detailed allegations, claiming that Mr. Stephenson has mischaracterized her claims, that Ms. Stephenson did not allege that his ex-girlfriend deliberately tried to ruin her credit, but rather that the ex-girlfriend’s actions “inadvertently” affected Ms. Stephenson’s credit. However, that evidence is at odds with Ms. Stephenson’s draft amended answer appended to her motion served in January 2024, which describes Ms. Stephenson’s credit rating problems being caused by the “illegal activity” [2] of the ex-girlfriend. Ms. Stephenson otherwise fails to address specifically Mr. Stephenson’s detailed evidence.

The Law

(i) Family Law Rules

The court is directed by the Family Law Rules to grant permission to amend pleadings unless the amendment disadvantages a party in a manner not compensable by costs or an adjournment.

Rule 11(3) states:

(3) On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

Some of the cases discussed below dealing with principles applicable to amendments of pleadings are governed by the Rules of Civil Procedure. However, r. 26.01 of the Rules of Civil Procedure is similar to r. 11(3) of the Family Law Rules, and provides as follows:

26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

Also relevant is the primary objective of the Family Law Rules, which is to deal with cases justly: r. 2(2). The court is required to promote this primary objective, and the parties and their lawyers are required to help the court to promote the primary objective: r. 2(4).

Dealing with cases justly includes ensuring that the procedure is fair to all parties, and also saving time and expense: rules 2(3)(a), (b).

(ii) Jurisprudence

The discussion below makes reference to some of the authorities cited by Mr. Stephenson in his statement of law. Ms. Stephenson did not refer to any authorities.

There is authority from the Court of Appeal for Ontario that prejudice to a responding party, on a motion to amend pleadings, will be presumed in circumstances where there is inadequate justification for any inordinate delay; the presumption of prejudice will apply absent a demonstration by the moving party that there is in fact no prejudice despite any lengthy and unexplained delay.

In support of the foregoing, Mr. Stephenson relies on some decisions from the Court of Appeal for Ontario. In Family Delicatessen Ltd. v. London (City), para 6, the statement of claim was issued in June 1998; in November 2004, an amendment was sought to the statement of claim alleging a new cause of action against the City. The court stated in part, at para. 6:

“... There is no justification for the inordinate delay in bringing the motion to amend the statement of claim. While delay is not in and of itself a basis for refusing an amendment, there must come a point where the delay is so long and the justification so inadequate that some prejudice to the defendants will be presumed absent a demonstration by the party seeking the amendment that there is in fact no prejudice despite the lengthy and unexplained delay.”

Mr. Stephenson also cites Horani v. Manulife Financial Corporation, 2023 ONCA 51, paras 32, 38. That case involved a motion to amend the statement of claim to include a claim for punitive damages. The statement of claim was issued in November 2015 and was amended in January 2017 to name the husband’s wife as litigation guardian. During pretrial conferences in January 2021 and March 2022, counsel for all parties advised the pretrial judge that the pleadings were in order. In April 2022, approximately six-and-a-half years after the action was commenced, the motion to amend was brought. The action had been set down for trial; the motion to amend was brought six weeks prior to trial. The motion judge dismissed the request to add a claim for punitive damages.

In dismissing the appeal, the court stated that where the delay in seeking an amendment is lengthy, courts will presume prejudice to the responding party, and the onus to rebut the presumed prejudice lies with the moving party: see para. 32, which cited Family Delicatessen Ltd., supra, at para. 6, and 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, para 25.

In Horani, it was noted that a claim of counsel’s inattention did not constitute a plausible explanation for delay. The court stated, in part, at para. 38:

“… we are not satisfied that it would be necessary in the interests of justice to allow the appellants to bring a motion to amend its pleading to add punitive damages. The appellants have represented to the court their readiness to proceed to trial on two separate occasions and not once in this six-year period did the appellants seek to amend its pleading to add a claim for punitive damages. No plausible explanation for the delay was proffered to this panel and the motion judge beyond counsel’s inattention.”

In State Farm, supra, the Court of Appeal for Ontario summarized the general principles regarding leave to amend motions at para. 25. These principles include:

a. that at some point, the delay in seeking an amendment will be so lengthy and the justification so inadequate, that prejudice to the responding party will be presumed;

b. that the onus to prove actual prejudice lies with the responding party; and

c. that the onus to rebut presumed prejudice lies with the moving party.

In Mio v. Mio, 2014 ONSC 2186, relied on by Mr. Stephenson, the mother brought a “last-minute motion” to amend her pleadings to claim retroactive child support. The motion was brought approximately 18 months after the proceeding was commenced, being the father’s motion to change. In dismissing the mother’s request to amend her pleadings, Pazaratz J. noted the following:

a. While the mother submitted that any prejudice to the father can be compensated by costs, the mother was not actually offering to pay any costs and was taking the position that she had no current ability to pay costs: para. 27;

b. The mother’s approach was characterized by the court as “… allow my amendment now and we’ll talk about costs later…”: para. 28;

c. This approach is inconsistent with r. 11(3) which requires that both prejudice related to the amendment and the appropriate compensation need to be determined simultaneously, as part of the determination as to whether the amendment should be permitted: para. 28; and

d. The court in para. 32 referred to rules 2(2), (3) and (4)—the primary objective to deal with cases justly; reducing time and expense; and the requirement of the parties and their lawyers to help the court to promote the primary objective—and the court stated, at para. 33:

Courts generally take a flexible and even forgiving approach to amending pleadings. But in an era of heightened concern about the cost, duration and emotional drain of family litigation, we cannot allow Rule 11(3) to relieve litigants of their fundamental obligation to pursue their claims in a diligent and efficient manner.

Mr. Stephenson relies on Moghimi v. Dashti, 2016 ONSC 2116, where a motion to amend was brought “on the eve of trial” and 20 months after the application was issued. The respondent husband sought leave to amend his answer to claim unequal division of net family property pursuant to s. 5(6) of the Family Law Act.

In dismissing the respondent’s motion, Myers J. noted the following:

a. The respondent provided no draft pleading for the court to review; although it was not necessary to decide whether this was fatal to the motion, the court noted that it is “certainly better practice” to provide a draft amended pleading;

b. The court stated that the respondent made no specific proposal for costs thrown away or for additional discovery, citing Mio, supra, on the point that failure by a party on a motion to amend to make a proposal to compensate the other party for some costs is a relevant factor to consider: paras. 25, 29;

c. On the issue that adjournments and delay are not fully compensated by costs, Myers J. states, at para. 30:

Adjournments and delay are also not fully compensated by costs. Delay prevents the early, efficient resolution of the proceeding. Delay increases the distressing elements of litigation. In family litigation in particular, where inter-personal emotions are very substantial drivers of parties’ positions and settlement, minimizing delay and preventing delay from becoming a weapon in the hands of a more moneyed or emotionally powerful litigant has its own value. See: Letang v. Hertz Canada Limited, 2015 ONSC 72, para 18.

d. In explaining why costs or an adjournment would not compensate the responding party, Myers J. states, at para. 32:

I find that the last-second request for an amendment to plead an unparticularized claim for an unequal sharing of net family property for the first time, on the eve of trial, unaccompanied by any plan to ameliorate the prejudice of an inevitable adjournment would cause disadvantage to the applicant in a way for which costs or an adjournment could not compensate. The applicant has been waiting 20 months for a trial. The parties are entitled to timely justice. Requiring the applicant to continue to wait for whatever her just due may be puts her in a further disadvantaged position at the hands of this respondent both in terms of her bargaining position and in terms of her perception of the justness of the process.

Mr. Stephenson also relies on Burton v. Docker, 2023 ONSC 1974, a case where the defendants sought to amend their statement of defence four years after the action was commenced and ten weeks prior to trial. In dismissing the defendants’ motion, Agarwal J. reviewed the authorities, including decisions from the Court of Appeal for Ontario in Family Delicatessen Ltd., Horani, and State Farm, supra. Agarwal J. stated, in part:

a. That in the aforesaid three cases, the requests to amend pleadings ranged from six years to eight-and-a-half years after the action was either commenced or the cause of action arose, as compared to four years in the current case. Agarwal J. stated there was no “bright-line” or “rule of thumb” as to how long the delay must be: para. 24;

b. The defendants failed to explain their delay: para. 25; and,

c. The court found that the defendants’ delay in seeking an amendment was so lengthy, and their justification so inadequate, that prejudice to the plaintiff is presumed and that the defendants have not displaced their onus to rebut the presumed prejudice: para. 30.

Decision

Ms. Stephenson fails to provide any reasonable explanation as to her delay in seeking to amend her pleadings to include trust claims regarding the matrimonial home. Her current motion was brought approximately four years and three months after Mr. Stephenson commenced this application.

This lack of explanation must be viewed in the context that Ms. Stephenson already has amended her pleadings twice, and that the alleged facts relevant to the current motion to amend arose prior to the commencement of the proceeding and were known to Ms. Stephenson at that time, and also at the times of the two previous amendments. Ms. Stephenson in her reply affidavit seeks to attribute blame to all her lawyers for not pursuing the amendment. She deposes that her last counsel focused on trial preparation rather than pursuing the amendment. Ms. Stephenson does not dispute Mr. Stephenson’s evidence that she has had five lawyers in this proceeding.

Ms. Stephenson’s attempt to blame her lawyers is neither a credible nor plausible explanation for her delay; as previously noted, see Horani, supra, at para. 38, where a claim of counsel’s inattention was insufficient to constitute a plausible explanation for delay.

The order of Tobin J. required Ms. Stephenson to bring her motion to amend regarding trust claims returnable in January 2024. She did so by serving the motion with no affidavit in support. Afterwards, she failed to pursue the motion, including after she retained her last counsel. Ms. Stephenson, at the trial readiness court on April 30, 2024 (when she had counsel) and also on October 1, 2024 (when she was self-represented), indicated that she was ready for trial.

There was no proposal by Ms. Stephenson to pay anything towards Mr. Stephenson’s costs, including any costs thrown away. In her reply affidavit, she deposes to having limited financial resources.

The evidence indicates that Mr. Stephenson has invested considerable energy and money in advancing his case based on issues identified in the pleadings which included two amended answers. This case has been on the trial sittings for May 2023 and also on the trial sittings for May, June, September and October 2024. In May 2023, this case was struck from the trial list because of Ms. Stephenson’s outstanding witness affidavits, disclosure and valuations. More recently, Hassan J. struck this case from the October 2024 sittings as a consequence of Ms. Stephenson serving three motions, which included the current motion to amend; as noted earlier, Hassan J. described this case as having a real risk of becoming unmanageable if not already.

As noted previously, Ms. Stephenson’s oral questioning was held in August 2023; Mr. Stephenson’s oral questioning was held in December 2023.

This case is drifting out of control. A number of settlement conferences and trial management conferences have been held. As indicated above, this case has been on at least five different trial sittings. The last trial management conference spawned the current motion to amend (plus two other motions) while Ms. Stephenson’s previous motion for the same amendment returnable in January 2024, with no supporting affidavit, drifted aimlessly, was never pursued or dealt with, and was effectively abandoned by Ms. Stephenson when she told the court on at least two occasions that she was ready for trial.

While the evidentiary record is insufficient to make any final conclusions regarding the merits of Ms. Stephenson’s alleged trust claims, including her claim for unjust enrichment, it is important to consider that in the vast majority of cases, any unjust enrichment that may arise will be addressed through the equalization of net family properties. In Martin v. Sansome, 2014 ONCA 14, paras 63-64, the Court of Appeal for Ontario stated at paras. 63 and 64:

[63] Section 5(7) of the FLA makes clear that the express purpose of the equalization provisions of the FLA is to address the unjust enrichment that would otherwise arise upon marriage breakdown:

5(7) The purpose of this [equalization] section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).

[64] In McNamee v. McNamee, 2011 ONCA 533, para 66, this court stated that"in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the Family Law Act".

If the amendment is permitted, there is the spectre of more oral questioning; potential experts and experts’ reports as suggested by Ms. Stephenson; another trial management conference; and more legal expenses. Not to be ignored is Ms. Stephenson’s conduct during this case as alleged by Mr. Stephenson with little or no dispute by Ms. Stephenson as to the specific allegations, including that Ms. Stephenson entered a plea of guilty to a charge of public mischief regarding false allegations made to police. Also, Ms. Stephenson’s previous finger-pointing at Mr. Stephenson’s ex-girlfriend, blaming her for some alleged illegal activity interfering with Ms. Stephenson’s credit rating, suggests that the trust claims that Ms. Stephenson seeks to pursue will lead to more messy, expensive, acrimonious and protracted litigation. If the amendment is allowed, then the result will be that the primary objective of dealing with this case justly will disappear, if it has not already.

Mr. Stephenson should not be forced to “retool” his case after over four-and-a-half years; nor should he be required to incur more costs, delay, anxiety, and uncertainty in seeking a final order. This is not a case where the amendment sought is compensable by costs or an adjournment. It is in the interests of justice for all parties that this case proceed to trial based on the current pleadings.

I find that Ms. Stephenson’s delay in bringing her current motion to amend is so long, and the justification is so inadequate, that it rises to a level that prejudice to Mr. Stephenson is presumed.

I find further that Ms. Stephenson has failed to demonstrate that there is in fact no prejudice to Mr. Stephenson despite the lengthy and unexplained delay.

I address briefly that Mr. Stephenson filed a motion to strike some portions of Ms. Stephenson’s motion and to strike the exhibits in Ms. Stephenson’s initial affidavit. During argument, other than noting the existence of this motion, no further submissions were directed by the parties towards this procedural motion. The issue relating to the exhibits has been addressed earlier in these reasons. Accordingly, I treat Mr. Stephenson’s motion as having been abandoned.

I address also that the order below dismissing Ms. Stephenson’s motion is a final order. In Horani, supra, at para. 12, the Court of Appeal for Ontario stated that the appeal was properly before that court because the motion judge’s dismissal of the motion to amend to claim punitive damages, finally disposed of the appellants’ substantive right to claim punitive damages, and was therefore a final order.

Similarly, the dismissal of Ms. Stephenson’s motion finally disposes of her substantive right to advance trust claims regarding the matrimonial home.

Order

I make the following final order:

1. The respondent Ms. Stephenson’s motion to amend her answer to include trust claims relating to the matrimonial home is dismissed.

2. If the applicant and the respondent, Ms. Stephenson, are unable to resolve the issue of costs of the motion, then written costs submissions shall be served and filed with the court in the usual manner. The applicant’s costs submissions shall be served and filed within 14 days, the respondent Ms. Stephenson’s costs submissions shall be served and filed within 14 days thereafter, and any reply costs submissions by the applicant shall be served and filed within 7 days thereafter. All written costs submissions shall be typed, double-spaced, with a minimum 12-point font, and shall not exceed three pages, two pages for reply. Copies of any offers to settle, bills of costs and time dockets may be appended to the written costs submissions. Any reference to authorities shall be by way of hyperlink in the written costs submissions.

3. If the applicant and the respondent Ms. Stephenson are able to resolve the issue of costs within 14 days, then those parties shall file with the court a consent endorsement request and an approved draft order.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: March 20, 2025

[1] The three affidavits served and filed are: Ms. Stephenson’s affidavit sworn October 9, 2024; Mr. Stephenson’s responding affidavit sworn January 8, 2025; and Ms. Stephenson’s reply affidavit sworn January 13, 2025.

[2] The motion with the draft amended answer appended to it, returnable January 24, 2024, was a document referred to in Mr. Stephenson’s confirmation notice for the current motion. The allegation of “illegal activity” is contained in para. 15 of the draft amended answer.