Superior Court of Justice

Court File Number: FS-22-102320-00
Citation: Caringi v. Caringi, 2025 ONSC 242
Location: 7755 Hurontario Street, Brampton ON L6W 4T6

Endorsement on Return of Urgent Motion Made Without Notice

Date: January 10, 2025

Applicant(s):
Dana-Paula Caringi
☒ Present

Counsel for Applicant:
David K. Sherr
☒ Present
email: dsherr@lldg.ca

Respondent(s):
Mauro Caringi
☒ Present

Counsel for Respondent:
E. Gamus / Y. Dhall
☒ Present
☒ Videoconference
email: ehgamus@mpllp.com / ydhall@mpllp.com

Presiding Judge: McGee

Return of Motion Made Without Notice dated December 6, 2024

Heard December 30, 2024

Orders Sought and Applicable Rule

1. In a Notice of Motion made without notice exactly one month before the scheduled Trial of this matter, the Applicant, Ms. Caringi, sought Orders that:

   i. 301 Woolverton Road, Grimsby, Ontario (“the property”), title to which is solely registered to Mr. Caringi’s partner, Ms. Brown, not be encumbered or sold by any person or entity without further Order of the Court.

   ii. Required the Royal Bank of Canada to advise as to the account holder and current balance of five listed accounts, all of which are suspected to be accounts owned by Ms. Brown.
   1 I will not reference the actual five account numbers for reasons of privacy.

   iii. Required the RBC to produce statements and transaction records as may be requested by Ms. Caringi or her counsel for all transactions through any and all accounts held by Ms. Brown, whether held solely, jointly or over which she has signing authority from September 4, 2019 to present.

   iv. Required that any and all banking institutions immediately disclose and freeze all accounts held by Mr. Caringi and Ms. Brown, whether owned solely, jointly or over which they have signing authority.

   v. A court appointed receiver seize any vehicles, trailers and equipment stored at the property for a short duration pending trial in January 2025.

   vi. Ms. Caringi be granted leave to Amend the Application seeking relief relating to Mr. Caringi’s beneficial interest in the property and any such assets held by Ms. Brown as may be deemed to be held in trust on his behalf.

   vii. If required, for any of the foregoing, an Order that Ms. Brown be added as a party to this proceeding.

2. Rule 14(12) of the Family Law Rules (“the Rules”) permits a party to bring a motion without notice if:

   a. the nature or circumstances of the motion make notice unnecessary or not reasonably possible;

   b. there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;

   c. there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or

   d. service of a notice of motion would probably have serious consequences.

Orders Granted Without Notice

3. The Motion without notice came before Regional Senior Justice Tzimas. In lengthy reasons dated December 17, 2024, RSJ Tzimas found a compelling basis on which to conclude that there had been a comingling of funds between Mr. Caringi and Ms. Brown, and per Rule 14(12)(a) above that the nature and circumstances of the Motion made notice unnecessary.

4. Justice Tzimas did not find, nor was it argued, that service of the Motion on Ms. Brown or the RBC would have serious consequences pursuant to Rule 14(12)(d).

5. Out of an abundance of caution, Justice Tzimas made three substantive Orders:

   1. That 301 Woolverton Road was not to be encumbered or sold by any person or entity without further Order of the Court.

   2. That the RBC was to advise Ms. Caringi or her counsel as to the account holder and the current balance of the five listed accounts.

   3. That the RBC was to produce the statements and the transactions from September 4, 2019 to the present as per paragraph 2(iii) above.

6. Justice Tzimas declined to grant the balance of Orders sought and noted at paragraph 8 of her endorsement that a mareva injunction – which is how the motion was framed before her – must be heard de novo when it returns on notice, see Pavoo v. Ferreira, 2018 ONSC 1573, at para 52.

7. Rule 14(14) of the Family Law Rules requires that an Order made without notice must come back to the court and, if possible, to the same judge, within 14 days or on a date chosen by the court. Given seasonal scheduling, the matter returned before me on December 30, 2024 at which time I conducted a de novo hearing.

Issues to Determine

8. There are three questions to determine on the return of this motion without notice:

   a. On a de novo basis, does the Court have jurisdiction to order that 301 Woolverton Road, Grimsby, Ontario not be encumbered or sold by any person or entity without further Order of the Court?

   b. On a de novo basis, without notice to the RBC, does the Court have jurisdiction to order RBC to advise Ms. Caringi or her counsel as to the name of the account holder and the current balance of the five listed accounts?

   c. On a de novo basis, without notice, does the Court have jurisdiction to order the RBC to produce statements and transaction records as may be requested by Ms. Caringi or her counsel for all transactions through any and all accounts held by Ms. Brown, whether held solely, jointly or over which she has signing authority from September 4, 2019 to present?

Analysis

Parties and the Record Before the Court

9. I first set out the extent of the materials filed in Ms. Caringi’s Motion without notice before proceeding with the analysis; and I identify that the Motion materials were served on Mr. Caringi’s counsel on Friday, December 20, 2024 just before both counsels’ offices closed for the Christmas Break.

10. When the matter returned before me on December 30, 2024 – Justice Tzimas being unavailable – Mr. Caringi’s counsel had not had an opportunity to respond. Ms. Brown was not present, nor was her attendance required because she had not been served with Ms. Caringi’s Notice of Motion and supporting materials.
    2 The litigation has been brought to Ms. Brown’s attention as a courtesy by Mr. Caringi’s counsel, which does not constitute service on Ms. Brown.

11. Mr. Caringi asked for an adjournment of the Motion. I declined the request because the Trial was scheduled to begin in seven days. The Trial date of January 6, 2025 had been set by Justice LeMay on June 2, 2023.

12. Ms. Caringi’s Motion materials consisted of 369 pages, including her Affidavit sworn December 6, 2024 which adopted unsworn text within her December 5, 2024 14B Motion as her sworn evidence on the Motion.
    3 I was not advised if the 14B Motion was filed with the Court. If so, it must be withdrawn. Per Rule 14(10), 14B Motions are only for matters that are procedural, uncomplicated or unopposed.

13. The 369 pages of materials were organized as follows:

• Schedule A: (114 pages) The December 5, 2024 14B Motion, consisting of 20 pages of text and Ms. Caringi’s June 15, 2023 affidavit with 18 exhibits. The June 15, 2023 affidavit had been tendered in support of her motion for spousal support that was heard and determined by Justice Shaw on September 18, 2023.
• Schedule B: (17 pages) the endorsements to date in this proceeding which identify that the litigation had been inactive from September 18, 2023 to the filing of the December 6, 2024 Motion without Notice.
• Schedule C: (1 page) a December 14, 2021 cheque.
• Schedule D: (1 page) a July 5, 2022 bank draft.
• Schedule E: (1 page) a January 10, 2023 cheque.
• Schedule F: (3 pages) a corporate profile.
• Schedule G: (9 pages) a Ministry of Public and Business Service Delivery Profile Report dated December 4, 2024 and an undated LinkedIn printout.
• Schedule H: (4 pages) August 18, 2020 National Post online article.
• Schedule I: (2 pages) January 5, 2023 to February 3, 2023 RBC Banking Statements of Mr. Caringi and Ms. Brown with a bank draft.
• Schedule J: (3 pages) January 5, 2023 to February 3, 2023 additional bank statement of Mr. Caringi and Ms. Brown.
• Schedule K: (3 pages) February 3, 2023 to March 3, 2023 RBC Banking Statements of Mr. Caringi and Ms. Brown and a cheque.
• Schedule L: (2 pages) May 5, 2023 to June 5, 2023 RBC Banking Statement of Mr. Caringi and Ms. Brown.
• Schedule M: (73 pages) July 12, 2023 affidavit of Mr. Caringi with eleven attachments and his July 12, 2023 Financial Statement also filed for the spousal support motion.
• Schedule N: (36 pages) March 9, 2023 affidavit of Mr. Caringi with five attachments.
• Schedule O: (1 page) July 5, 2022 to August 5, 2022 RBC Banking Statements of Mr. Caringi and Ms. Brown.
• Schedule P: (1 page) August 4, 2022 Bank Draft.
• Schedule Q: (4 pages) Parcel register and Transfer showing Ms. Brown’s purchase of the property on August 8, 2022 for $850,000 and a RBC Charge for the full amount of the purchase price.
• Schedule R: (6 pages) Summary of Account Charges December 21, 2021 to October 30, 2024.
• Schedule S: (2 pages) Disclosure Chart of the Respondent dated October 24, 2024.
• Schedule T: (3 pages) Account Statements from August 23, 2021 to May 31, 2023.
• Schedule U: (4 pages) TD Canada Trust account statements for Mr. Caringi and Ms. Brown from April 1, 2023 to September 23, 2024.
• Schedule V: (3 pages) Scotia Bank bank draft and cheques.
• Schedule W: (18 pages) TD Bank deposits from July 17, 2023 to March 30, 2024.
• Schedule X: (3 pages) Justice Shaw’s Order of September 18, 2023.
• Schedule Y: (3 pages) Undated Internet printout of Trailers and car Haulers for sale by Scott Reinhart Trailer Sales Ltd.
• Schedule Z: (7 pages) Internet Printouts of what appear to be trailers being sold by Ms. Brown on her Facebook page.
• Schedule AA: (7 pages) October 19, 2022 unpublished endorsement by Justice Doi in another, unrelated proceeding in which Mr. Sherr (Ms. Caringi’s counsel of record here) was a counsel of record.

A Motion Without Notice Is Not a Trial

14. A Motion with or without notice is not a substitute for Trial. Motions can only result in temporary Orders, and a Motion without notice is no more than a holding Order for a period of 14 days.

15. The 369 pages of affidavit text and exhibits tendered in this Motion consist of evidence and exhibits that were previously disclosed by Mr. Caringi or were in the possession of Ms. Caringi. All the documents tendered in this Motion can be tendered at Trial, but some may not be admissible, such as undated internet printouts. There is no lesser standard of admissibility in a Motion.

16. Many of the documents listed above that are admissible were previously relied upon in a Motion for Temporary Spousal Support heard in September of 2023.

17. For the purposes of this Motion, I need not consider each line item for admissibility, lest the Motion exceed any semblance of proportionality. What I take from this record is that Ms. Caringi’s affidavit evidence and her proposed exhibits have not been curated in support of the Orders sought. Instead, they appear to consist of all the financial documents gathered to date, reinforcing an impression that much of the work of a two-week Trial is being attempted as a one-hour Motion without notice to the other side.

18. In family law, an urgent motion that is made without notice anticipates the abduction of a child or threats of harm to a child, or dire financial circumstances, see Rosen v. Rosen, [2005] O.J. No. 62. Although much has since been written on the threshold nature of an urgent Motion – particularly during the Covid period of suspension of court services – the basic threshold remains the same: imminent and irrecoverable prejudice to a moving party that cannot otherwise be overcome.

On a de novo basis, does the Court have jurisdiction to order that 301 Woolverton Road, Grimsby, Ontario not be encumbered or sold by any person or entity without further Order of the Court?

19. I am satisfied, as was Justice Tzimas, that the materials filed by Ms. Caringi demonstrate a post-separation commingling of Mr. Caringi and Ms. Brown’s financial affairs. At the same time, nothing nefarious arises from a party entering into joint financial dealings with a new partner after separation unless the comingling is relevant to a claim before the Court.

20. Mr. and Ms. Caringi were married from August 18, 1990 to either November 18, 2018 (Ms. Caringi’s date of separation) or September 4, 2019 (Mr. Caringi’s date of separation).
    4 Which was originally plead as June 1, 2019
    They are the parents of three adult children, now ages 32, 27 and almost 24, all of whom are presently independent.

21. The claims set out in Ms. Caringi’s 2022 Application for Divorce are for child support, spousal support, the sale of their jointly owned Mississauga home where she and the adult children continue to reside, an equalization payment and an Order for divorce.

22. No claims are made against Ms. Brown with whom Mr. Caringi has subsequently repartnered. Specifically, Ms. Caringi has not made a trust or other property claim against Ms. Brown. Ms. Caringi cannot assert a trust claim against Ms. Brown on behalf of Mr. Caringi, see Karatzoglou v. Commisso, 2023 CarswellOnt 6030 (ONCA).

23. Section 12 of the Family Law Act permits a party to obtain a preservation Order that restrains the depletion of a spouse’s property if the court considers it necessary for the protection of the other spouse’s interests under Part I (Property) of the Act. Ms. Brown is the titled owner of 301 Woolverton Road in Grimsby, so a preservation Order is presumptively unavailable.

24. However, Ms. Caringi asserts that the property is beneficially owned by Mr. Caringi as a result of certain transactions in which Mr. Caringi and Ms. Brown’s financial affairs are clearly co-mingled.

25. Whether or not the property is beneficially owned by Mr. Caringi is not relevant to Ms. Caringi’s claim for an equalization payment because the property was purchased on August 8, 2022, well after the latest plead date of separation.

26. Even if he were found to be the beneficial owner, a finding that is only available to Ms. Caringi upon Ms. Brown becoming a party with the full opportunity of Answer and defence, see D’Angelo v. Barrett, 2016 ONCA 605; the property was acquired post-separation. It cannot form part of Mr. Caringi’s Net Family Property.

27. How 301 Woolverton was acquired by Ms. Brown could be the subject of cross-examination at Trial. For example, if the co-mingling demonstrates a diversion of Mr. Caringi’s income for support purposes, section 19(1)(d) of the Federal Child Support Guidelines might be invoked as a basis upon which to impute income to Mr. Caringi for support purposes.

28. If the comingling of assets that led to the purchase of the property in August 8, 2022 has its origins in an undisclosed asset held by Mr. Caringi on the date of separation, the value of the undisclosed date of separation asset would be relevant to Ms. Caringi’s equalization claim.

29. Both of these examples, if advanced by Ms. Caringi, are potential Trial inquiries, but neither can support a claim for a preservation Order on the property pursuant to section 12 of the Family Law Act.

30. In a final push, Ms. Caringi relies on the unreported decision of Justice Doi in Manjunath v. Kuppa et al. Justice Doi’s decision provides a useful overview of the legal tests necessary to a Norwich Order. In Manjunath, a Norwich Order was available to trace and preserve the sale proceeds of a matrimonial home. The applicant and respondent were former spouses. Three additional respondents were family members of the respondent husband.

31. The evidence before Justice Doi supported a finding that the funds from the sale of the parties’ former matrimonial home were being moved amongst the respondents in an attempt to defeat the applicant’s claim for an equalization payment by placing the funds beyond her reach.

32. The circumstances in this proceeding are easily distinguished. The jointly owned matrimonial home has not been sold and remains in Ms. Caringi’s possession. Ms. Caringi sets out in her Financial Statement that the matrimonial home has a present value in the range of $1,200,000. There is no mortgage. If she is entitled to an equalization payment, at least $600,000 is already secured by Ms. Caringi, which is Mr. Caringi’s one half equity in the matrimonial home.

33. Ms. Brown is not a party to this Application. Ms. Caringi has no equalization or trust claims against Ms. Brown. I reject the submission that preservation of Ms. Brown’s property is necessary to secure Ms. Caringi’s spousal support claim because spousal support is being enforced by the Family Responsibility Office, and moreover, is not in arrears.

34. I decline to make an Order that 301 Woolverton Road, Grimsby, Ontario not be encumbered or sold by any person or entity without further Order of the Court.

On a de novo basis, without notice to the RBC, does the Court have jurisdiction to order RBC to advise Ms. Caringi or her counsel as to the account holder and current balance of the five listed accounts?

35. Mr. Caringi has advised that none of the named accounts are in his name. Ms. Caringi’s expectation is that the accounts are held by Ms. Brown. Neither RBC nor Ms. Brown have been served with this Notice of Motion.

36. If relevant documents are in a non-party’s control, Rule 19(11) provides jurisdiction for a Court to order that the non-party allow the moving party to examine the document and provide a copy of the document to be used in the case as if it were an original. Specifically, Rule 19(11) reads:

Document in non-party’s control
(11) If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,
(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and
(b) order that a copy be prepared and used for all purposes of the case instead of the original.

37. I have been provided with no authority that would permit me to order the RBC to disclose a non-party account owner or the balances in a non-party’s account without notice to the owner of the account, but for Manjunath v. Kuppa et al.

38. Again, this case must be distinguished because Ms. Brown is not a party to the Application, and I am not satisfied that Ms. Caringi has provided a sufficient evidentiary basis for the granting of a Norwich Order without notice to Ms. Brown, or to the RBC.

39. The factors governing a Norwich Order are set out in paragraph 6 of Justice Doi’s decision which repeats the test in GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619, para 71 and Carleton Condominium Corporation No. 282 v. Yahoo! Inc., 2017 ONSC 4385, para 9:

a. whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim,

b. whether the applicant has established a relationship with the third party from whom the information is sought, such that it establishes that the third party is somehow involved in the acts complained of,

c. whether the third party is the only practicable source of the information available,

d. whether the third party can be indemnified for costs to which the third party may be exposed because of the disclosure, and

e. whether the interests of justice favour obtaining the disclosure.

40. GEA Group AG goes on to state that a Norwich Order is an equitable, discretionary, and flexible remedy that is also intrusive and is to be exercised with caution, see para 85. It is important for the Court to assess the need for discovery and the proposed use to which the information sought may be put, see para 85 and 91.

41. Here, the records giving rise to Ms. Caringi’s concerns were produced by Mr. Caringi, and he has been given no opportunity to explain any of the transactions impugned by Ms. Caringi. There have been no examinations.

42. Mr. Caringi is the primary source of the information sought by his former spouse, and it cannot be assumed before questioning him that he and Ms. Brown are co-mingling their financial affairs to defeat Ms. Caringi’s claim for an equalization payment (which would need to be prima facie in excess of $600,000) or her claim for spousal support.

43. Temporary spousal support of $7,000 a month is in pay pursuant to the September 18, 2023 Temporary Order of Justice Shaw. It is not in arrears. There has been no litigation whatsoever between the parties since that Order was granted, the matter being inactive until the filing of this motion on the eve of Trial.

44. I am not satisfied that a Norwich Order should be granted in these circumstances. Rule 19(11) of the Rules does not permit me to order non-parties, here Ms. Brown and the RBC, to produce documents without special service of the Motion. I decline to make this Order.

On a de novo basis, without notice, does the Court have jurisdiction to order the RBC to produce statements and transaction records as may be requested by Ms. Caringi or her counsel for all transactions through any and all accounts held by Ms. Brown, whether held solely, jointly or over which she has signing authority from September 4, 2019 to present?

45. For the same reasons as set out above, I decline to make this Order.

Result

46. Pursuant to Rule 14(14) of the Family Law Rules, this motion reviewed the three Orders granted by Justice Tzimas on December 17, 2024 on a de novo basis. I find that I cannot make any of the three Orders sought. The Orders sought in the December 6, 2024 Notice of Motion are dismissed.

Costs

47. Costs submissions were received at the conclusion of the Motion. Mr. Caringi seeks costs of $5,000, inclusive of fees, disbursements and HST thereon. Ms. Caringi argues that the costs sought are excessive.

48. Motions brought without notice that are ultimately unsuccessful attract a higher standard of costs because they constitute unreasonable litigation behaviour, a factor to be considered when setting the amount of costs within Rule 24(13) of the Family Law Rules.

49. This motion was not proportionate. In setting the amount of costs I must also consider the timing and breadth of this Motion brought a month prior to Trial and served just before the Court Christmas break.

50. There was no urgency to the Motion, particularly with respect to the preservation Order. The property titled to Ms. Brown was not for sale and there had never been a change to the singular encumbrance registered on title: a Charge for the whole of the purchase price of the property. The finding sought by Ms. Caringi – that Mr. Caringi is the beneficial owner of the 301 Woolverton property – is only available at Trial and more importantly, is not relevant to the calculation of her claim for an equalization payment because it was purchased after the date of separation.

51. The non-party documents sought by Ms. Caringi – if they remain relevant after questioning Mr. Caringi – could have been obtained at Trial per Rule 23(3) with a Summons to Witness, or they could have been sought on notice months before the Trial was scheduled to begin.

52. An enhanced amount of costs is necessary to achieve the third of the four purposes of a costs award: to partially indemnify successful litigants; to encourage settlement; to discourage and sanction inappropriate behaviour by litigants; and to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules.

53. I grant $5,000 in costs to Mr. Caringi, being fees of $4,425 and HST thereon of $575. Costs are payable to Mr. Caringi in 30 days.

Matter removed from the Trial List and Set to Assignment Court

54. I was advised at the conclusion of the Motion that neither party wishes to conduct the Trial during these January 2025 sittings. The matter is therefore removed from the Trial sittings and placed on the January 20, 2025 Assignment Court, held by Zoom at 2:00 pm, to be rescheduled to the next available sittings. Coordinates for the videoconference will be provided closer to the event.