The respondent brought a motion seeking to declare the family law proceeding a nullity, dismiss or stay the application, and discharge a certificate of pending litigation (CPL) registered against a property.
The respondent argued the applicant lacked legal capacity due to undischarged bankruptcy and failed to make full and fair disclosure when obtaining the CPL ex parte.
The applicant presented a conflicting factual account, asserting a spousal relationship and a written agreement for property transfer, and arguing any non-disclosure was unintentional or cured by the trustee's authorization.
The court identified stark factual disputes, including significant credibility issues regarding the nature of the parties' relationship and property agreements, which could not be resolved on affidavit evidence alone.
Emphasizing that the exercise of discretionary relief under the Bankruptcy and Insolvency Act, Courts of Justice Act, and Rules of Civil Procedure must align with equitable principles, particularly against fraud, the court found it inappropriate to determine the motion without resolving these triable issues.
Consequently, the motion was adjourned to the trial judge for substantive hearing and determination, with costs reserved.
