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Reviewing appellate cases is a worthwhile exercise for trial and appellate counsel alike. The Court of Appeal frequently outlines the parameters of law in Ontario, sometimes by making landmark decisions which change the province’s jurisprudential landscape, but more often by ruling on relatively mundane issues. Paying careful attention to claims which are dismissed out of hand pays dividends. If you practice law in Ontario, keeping your finger on the pulse of Ontario law is the only way to ensure that you are practicing ‘to the beat’.
The most basic function of lawyers is to advise our clients. “Don’t write that”, “don’t say that”, “the court won’t like that,” and “you need to do that” should be in every lawyer’s vocabulary.
Family lawyers must be particularly mindful of ongoing client management when advising their clients. Family law cases often take years to litigate, and events that transpire after the Application is issued are often the most important at the trial. Missteps made throughout the litigation process add up, and litigants who are misbehaved are often made to pay the price, though not always in the way they expected. Failing to obey court orders is the biggest blunder of all, as the appellant in Van Delst v. Hronowsky learned the hard way.
In this case, the appellant appealed an order from the Superior Court of Justice, which provided the respondent with security for an equalization payment. At trial, Justice Engelking ordered, pursuant to section 9 (1) (d) of the Family Law Act, that the appellant’s non-registered investment and / or account tax-free savings account be transferred to the respondent if he failed to pay his equalization payment within 15 days. If the funds in those accounts could not satisfy the payment, he ordered the funds to be transferred from the appellant’s pension. In his appeal, the appellant called this order “unjust and inoperable.”
The kind of security provided to the payee’s spouse by the trial judge in Van Delst was exceptional, but by no means unprecedented. Equalization payee spouses are unsecured creditors; however, under section 9 (1) (d) of the Family Law Act, the court has the power to order that “property be transferred to or in trust for or vested in a spouse” if it is “appropriate to satisfy an obligation imposed by the order”. In short, the court may grant rights analogous to those of a secured creditor to an equalization payee spouse if it deems it necessary to do so.
The Court of Appeal has previously ruled that a court “can impose a legal relationship between the spouses other than a debtor-creditor relationship pursuant to the equalization process, if the record justifies such exceptional and intrusive action.”1 When does the record justify such an order? Where there is a “proven concern that payment [of an
ordered equalization payment] will not be honored “.2
Neither the trial judge nor the Court of Appeal in Van Delst had any difficulty in concluding that the appellant’s conduct had provided ample evidence to give the courts concerned that the equalization payment would not be honored. The Court of Appeal noted that the appellant had failed to comply with previous orders, including orders for disclosure, had failed to pay outstanding costs orders, and was generally responsible for numerous delays in the proceeding. Accordingly, the Court of Appeal dismissed the claim that the order was unjust or inoperable.
Clients want their lawyers to fight for them, and so we should. But we cannot forget that there are rules to the game, the foremost of which is “obey court orders”. Clients are understandably furious when they see the opposing party flout a court order with what seems to be impunity and ask their lawyers, “why do they get away with it”? The answer is that they almost never do. The perceived short-term gain of disobedience frequently becomes the long-term pain of facing an aggravated court with the power to craft orders precisely in response to a litigant’s bad conduct.
Van Delst provides a succinct analysis of the meaning of “appropriate” in section 9 (1) (d) of the Family Law Act. It also doubles as a great case to forward to clients who ask why they need to obey court orders when it seems like the opposing party is getting away with disobeying them.
1. Thibodeau v. Thibodeau, 2011 ONCA 110 at para 39.
2. Thibodeau v. Thibodeau, 2011 ONCA 110 at para 39citing with approval, Whalen J., in Colquhoun v. Colquhoun,  OJ No. 9, 2007 CarswellOnt 18 (SCJ), at para. 168.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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