1. THE INJUNCTION
2. CERTIFICATE OF PENDING LITIGATION
3. ORDERS FOR PRESERVATION (S.12)
4. RESTRAINING ORDERS (S.40)
5. MAREVA INJUNCTION
6. ANTON PILLER INJUNCTION
An injunction is a judicial remedy by which a person is ordered
to refrain from doing or ordered to do a particular act or thing.
Originally the jurisdiction to grant relief by way of injunction
was only exercisable by the Court of Chancery (in Ontario, the
Superior Court) but lower Courts have been empowered by statute
to grant injunctive type relief in certain cases. There are
various statutorily defined types of injunctive remedies in
the Family Law Act and these remedies will be discussed
in these comments. The purpose of applying for injunctive relief
is to preserve property pending the happening of another event
(e.g., a trial). The purpose of this paper is to provide a
very brief summary of the law of injunctive relief as it relates
to family law property issues. Topics covered will include:
a survey of the types of remedies available, the basis of the
authority to bring the relief requested, when to seek each specific
form of relief, an outline of the test from the leading cases
and some current applications of that test.
The Courts of Justice Act, (the
“CJA”) sections 96, 97, 99 and 101, authorizes the Superior
Court to grant an injunction.
Rule 40 of The Rules of Civil Procedure, (the “Rules”) governs the procedure to follow
when making an application. Pursuant to Rule 40.03, the moving
party shall always, unless the court orders otherwise, provide
an undertaking for damages.
The Family Law Rules do not specifically refer to injunctions.
However, as a result of s. 1(7), a party may make an application
for this form of relief in the Superior Court.
The leading case which sets out the standard test for obtaining
injunctive relief is found in R.J.R. MacDonald Inc.
v. Canada (Attorney General).
The test is as follows:
1. Is there a serious issue to be tried?
2. Will there be irreparable harm?
3. What is the balance of convenience between the contesting
As explained by the Supreme Court of
Canada in RJR MacDonald, the more stringent standard
of the first part of the test, previously requiring the applicant
to make out a “strong prima facie case” was changed by
the House of Lords in American Cyanamid.
A. Serious issue to be tried
Under the first prong of the test, the
threshold is low. “The judge on the application must make a
preliminary assessment of the merits of the case.” 
The plaintiffs must prove they have a legal cause of action
under the laws of Canada. The judge is not to engage in a prolonged
examination of the merits but only determine that the application
is not frivolous and vexatious before turning to the other criteria.
B. Irreparable harm
As a function of
injunctions, “irreparable” refers not to the quantity of the
harm, but rather to the quality. Examples of irreparable harm
include the following:
a. harm to a person’s reputation or career;
b. harm to the viability of a business;
c. the quantity of damages is known, but unlikely to be recovered
but for the injunction;
d. a natural resource will be lost.
C. Balance of convenience
The final arm of the test requires that the judge weigh the
pros and cons of granting the injunction in relation to each
D. When is it used?
One instance in which injunctive relief is commonly used in
the family law arena is to provide a structure and remedy when
there is an application for a stay of one sort or another.
The test is also applied in most motions without notice.
E. Recent cases
In M. (C.L.) v. A. (J.E.)
the mother removed the child from the against the father’s
wishes. In the father’s application under the Hague Convention,
Justice Goodfellow ordered that the child be returned to her
habitual residence forthwith. The mother applied for a stay
of execution pending appeal of the order of Justice Goodfellow.
The Nova Scotia court grappled with two alternate tests and
held that the proper test in determining this issue was the
same as that used by the Ontario Court of Appeal in F. (S.)
v. Ontario (Director of Income Maintenance, Ministry of Community
& Social Services) wherein the court
adopted the standard in RJR MacDonald. The court granted
the application for the stay.
Broda v. Broda the Court of
Appeal granted a stay and employed the same test as the test
used in RJR MacDonald for granting an injunction.
Motions without notice
whole point of some injunctive proceedings is to proceed by
stealth so as to preempt any action by the defendant to remove
or dissipate assets. Therefore many injunctions will be obtained by Motions
Without Notice. I wish to make only two basic but very important
points: first, it is absolutely essential to make full and frank
disclosure of the case, both for and against. Failure to make
full and frank disclosure may be fatal to the continuation of
an injunction. If this practice is not followed, the lawyer
will soon be known as one who does not make full and frank disclosure
"both for and against", and the lawyer's credibility
will be lost irretrievably. Second, it should be remembered
that a judge is reluctant to make any order without notice,
and is often put in a vulnerable and difficult position when
a Motion Without Notice is brought. In a real way it is necessary
for the lawyer to protect the judge and allow the judge to fulfill
his/her function without concerns about injustice or being blind-sided.
CERTIFICATE OF PENDING LITIGATION
103 of the CJA combined with Rule 42 of the Rules of Civil
Procedure gives the court authority to grant this relief.
42.01(2) mandates that a party who seeks a certificate under
this section include the claim for it in the originating pleadings,
together with a description of the land.
42.01(3) allows that a motion under this rule may be brought
a motion for a certificate of pending litigation is made on
notice, the test is the same as if it were a motion to discharge
a certificate of pending litigation under s. 103(6) of the
Courts of Justice Act.” Subsection
103(6) The court may make an order discharging a certificate,
(a) where the party at whose instance it was issued,
(i) claims a sum of money in place
of or as an alternative to the interest in the land claimed,
(ii) does not have
a reasonable claim to the interest in the land claimed, or
(iii) does not prosecute
the proceeding with reasonable diligence;
(b) where the interests
of the party as whose instance it was issued can be adequately
protected by another form of security; or
(c) on any other ground that is considered just, and the court
may, in making the order, impose such terms as to the giving
of security or otherwise as the court considers just.
B. When is
A certificate of pending litigation is
used only when the item at issue is an interest in land, beneficial
or otherwise. Unlike orders obtained under the Family Law
Act, (the “FLA”), a certificate
of pending litigation can be acquired against third parties.
For example, in Zita v. Zita a certificate
of pending litigation was ordered against the parties’ matrimonial
home which had been owned by the husband’s parents.
On an application for a certificate of
pending litigation, the court must first determine whether there
exists an interest in land that raises a triable issue. There
is no requirement that the non-titled spouse should claim an
interest in land. As the law has evolved, the test
is whether an interest in land is "brought in question".
The interest in land being raised does not have to be an interest
belonging to the applicant.
To ground a certificate of pending litigation,
it is sufficient to plead that a respondent has a beneficial
interest in land, for example where the land was placed in a
third party’s name to avoid creditors, including the applicant.
Section 103(6)(a)(ii) of the CJA states
that a court may make an order discharging a certificate where
the party who applied for it does not have a “reasonable claim
to the interest in the land claimed”. In Nash v. Gilbert the wife had successfully applied for a certificate
of pending litigation against an income property which had been
conveyed to a third party. Counsel for the
new owner applied to set aside the certificate. The court
held that an interest in land is brought
into question and is sufficient to ground a certificate of
pending litigation when that certificate is in place in order
to help realize an equalization payment.
D. Recent cases
In Ho v. Ho Rogers, J. held that “an "interest
in the land" would be a condition precedent for a certificate
of pending litigation as provided for under section 103 of the
Courts of Justice Act.” On the facts before the court, Rogers,
J. held that there was insufficient evidence to show such an
In Hupka v. Aarts Estate the plaintiff
did not have to prove an entitlement to the land which was the
subject of the certificate to the extent of satisfying the onus
she must eventually show at trial, but only show that there
was a triable issue with respect to the land in question.
ORDERS FOR PRESERVATION (S.12)
A. The authority
12. Orders for Preservation
- 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
restraining the depletion of a spouse's property; and
(b) or the possession, delivering up, safekeeping and preservation
of the property.
B. When is
Section 12 applies to a proceeding commenced
under Part I of the FLA to ensure that property is not depleted
prior to equalization. Unlike with a certificate of pending
litigation, that property need not be land. The FLA applies
only to parties who are spouses, as defined in the Act, or their
representatives. The court has no authority to make orders
respecting the property of third parties under section 12 of
As a result, you can only use this section when the property
in question is the property of one of the spouses.
C. What is the difference between
(a) and (b)?
One subsection contemplates “non-depletion” while the other
speaks of “preservation”, but is that not just two ways of saying
the same thing? Black’s Law Dictionary defines “depletion”
“An emptying, exhausting or wasting of assets…”
and defines “preservation” as:
“the saving of that which already exists, and implies
the continuance of what previously existed.”
While the New Oxford Dictionary of English defines depletion
“reduce the number or quantity of” and to “diminish
in number or quantity”
and defines preservation as:
“to keep safe…maintain in present state” and
to “retain (quality or condition)”
The difference appears to be that of
nature and number. The court in Bronfman v. Bronfman stated that preservation
orders under s.12 of the FLA operate in two distinct ways.
The first “to place an onus on a spouse who has been required
to preserve assets, to account for his or her assets at the
date of trial” and the second “to restrain a person’s conduct
with respect to his or her property.”
The court in Proc v. Proc grappled with
the definition of “preservation orders” in a review of the jurisdiction
of a Master to make them. Within that discussion, it was contemplated
that there may be two different degrees of restriction. The
first, that of accounting for assets and the second, the creation
of an equitable interest in the specific property.
In Greer v. Greer the court states
“It is not sufficient to show that the funds were used constructively
in the preservation of other assets. Where the funds are liquid,
a non-depletion or non-dissipation order contemplates the asset
retaining its liquidity.”
Clearly, non-depletion orders necessitate more than maintaining
the amount of property available, but a maintenance of the nature
of that property.
A preservation order under s.12(b) can then be interpreted
as a mandate that the restrained spouse simply ensure that the
overall value of the total property not become less than it
is at the making of the order, and the form of the property
that makes up that value is immaterial so long as the necessary
funds are present to satisfy equalization. In an order mandating
non-depletion, however, there is the higher onus to maintain
the property in exactly the same quality or kind.
D. Leading cases
In Bronfman, the court followed the standard injunctive
relief set out in RJR MacDonald, when considering an
application under s. 12 of the FLA. However, depending on the
facts, the court would place a different amount of emphasis
on the third branch of the test, that test being states as:
(a) the relative strength
of the plaintiff’s case;
(b) the balance of convenience (or inconvenience);
(c) irreparable harm.
In Lasch v. Lasch the court stated
that a restraining order should be “restricted to specific assets”
and that there should be “an onus on the party seeking the order
to prima facie show that he or she is likely to receive
an equalization payment equal to the value of the specific assets.”
Preservation orders are in personam
orders and as such may be made in respect of real property
A court order restraining a party from disposing of or encumbering
assets creates an in personam right as between the parties,
but does not defeat bona fide third party rights in assets
of the party against whom the order is made.
E. Recent Cases
In Peters v. Peters the court contemplated
Mr. Peters’ right to deal with shares once a non-depletion order
had been made. The value of the shares had fallen since the
order. The court held that although he was restricted from
dealing with the shares under the non-depletion order, there
was nothing to stop him from applying to court to make the advantageous
RESTRAINING ORDERS (S.40)
Section 40 of the
orders – The court may, on application, make an interim
or final order restraining the depletion of a spouse’s or same-sex
partner’s property that would impair or defeat a claim under
If the claim is for support when applying for an order restraining
the depletion of property, you must bring your application under
C. Leading cases
Section 40 of the FLA is conspicuously under-represented section
in the case law. As such, there is no “leading” authority on
its application, beyond the test in RJR MacDonald. While
the issue contemplated by the drafters of the FLA is one that
could come up, it has as of yet, been relatively unreported.
D. Recent cases
In Ross v. Reaney the applicant
asked for, among other things, an order for support in the amount
of $2,500 per month and claimed relief under s. 40 of the FLA.
The court made an interim order granting $2,500 per month in
support and “…restraining Reaney from depleting of the proceeds
of the sale of the 10 Buller Avenue condominium and there shall
be an order requiring him to account for the disposition of
these proceeds to date.”
In Laiken v. Tatsambong
where the application for s.40 relief was dismissed because
parties were not spouses within the meaning of the FLA, MacKinnon
J. stated at paragraph 17 that had he found they were spouses,
he would not have concluded that “an order under s. 40 was necessary
to avoid impairing or defeating the Applicant's claim for spousal
support”. The court held that as the respondent had steady
employment the ability to pay support as ordered would not be
A. The authority
B. When is it used?
Section 101 of the CJA states:
101. (1) In the Superior Court of
Justice, an interlocutory injunction or mandatory order may
be granted or a receiver or a receiver and manager may be appointed
by an interlocutory order, where it appears to a judge of the
court to be just or convenient to do so.
And Rule 40.01 of the Rules of Civil Procedure states:
40.01 An interlocutory
injunction or mandatory order under section 101 or 102 of the
Courts of Justice Act may be obtained on motion to a
judge by a party to a pending or intended proceeding.
In the mid 1970's, in England, the concept
of the Mareva injunction was established. The Mareva injunction
is an order which ties up the assets of the defendant, either
specific or general, pending any judgment adverse to the defendant
so that the assets within would be available for execution in
satisfaction of that judgment. The controversy in the development
of the Mareva injunction occurred because the Mareva injunction
ordered security before judgment. This development was discussed
at length by Chief Justice McKinnon Chitel v. Rothbart,
in 1982, and in subsequent developments stemming from that case.
As the court does not have jurisdiction
under s.12 of the FLA to trammel the property of a third party,
a Mareva injunction is necessary when the assets do not belong
to the spouse or same-sex partner.
To obtain a Mareva, the moving party
must show there is a real risk of the assets disappearing, or
being removed outside the jurisdiction. Typically that jurisdiction
is Canada. Ordinarily a Mareva injunction is not available
to restrict a party from moving assets to a different province
as the advent of reciprocal enforcement legislation between
the provinces has typically done away with the need for inter-provincial
Marevas. However, in Gateway Village Investments Ltd.
v. Sybra Food Services Ltd.
the court contemplated the hardship and costs involved in
inter-provincial enforcement and granted a Mareva when there
was a risk the responding party would transfer property from
British Columbia to Alberta.
C. Leading cases
Because of the restrictive nature of a Mareva, the threshold
is somewhat higher than that set out in RJR MacDonald.
The Ontario Court of Appeal in Chitel laid out the test
for a Mareva injunction as follows:
(1) the applicant must have a
strong prima facie case on the merits;
(2) there is a real or genuine risk that the
defendants’ assets will disappear, or will be removed from
Canada, to avoid judgment or frustrate tracing or execution;
(3) the applicant gives an undertaking as to
These basic rules have been elaborated
upon over the years in a number of Canadian decisions that followed.
The Supreme Court of Canada in Aetna Financial Serviced Ltd.
v. Feigelman specified that
Marevas are the exception to the rule against pre-judgment execution.
Throughout further consideration of the Mareva injunction in
Aetna and R. v. Consolidated Fastfrate, it has become established practice
in obtaining a Mareva injunction that the plaintiff must show
the defendant is acting outside the normal course of business.
D. Recent cases
In Tatsambong MacKinnon J. held
that the applicant had not met the threshold as set out in Chitel
in that it did not show there was any real risk the respondent
was about to remove assets from the jurisdiction, nor that they
had any intent to dispose of those assets out of the ordinary
course of business. 
ANTON PILLER INJUNCTION
A. The authority
In addition to the
authority of s. 101 of the CJA, reference should be made to
Rule 32.01 of the Rules of Civil Procedure which states:
32.01(1) The court may make an order for
the inspection of real or personal property where it appears
to be necessary for the proper determination of an issue in
And one should look at Rule 45 of the Rules of Civil Procedure:
45.01(1) the court may make an interim order
for the custody or preservation of any property in question
in a proceeding or relevant to an issue in a proceeding, and
for the purpose may authorize entry on or into any property
in the possession of a party or of a person not a party.
B. When is it used?
An Anton Piller (“AP”) order is a remedy
specifically for seizing property or documents, either for the
purpose of preserving evidence or for trying to re-possess an
ill-begotten document. “One of the preconditions for an Anton
Piller order is the real possibility that the defendant may
destroy the relevant material if it had notice of the application.”
An AP order acts
like a search warrant, but can be obtained before an action
is started to ensure documents are not “lost” prior to proceedings.
When drafting pleadings for an AP you must be specific. The
court will not allow a party to obtain an AP order to engage
in a fishing expedition.
The leading case
is Anton Piller KG v. Manufacturing Processes Ltd.
The test for whether or not to grant an Anton Pillar injunction
stems from the three-pronged test in RJR MacDonald, but,
because of the mandatory nature of the order, the first prong
of the test is raised from the “triable issue” level to the
“strong prima facie case” level. The applicant on an AP order
must establish the following:
(1) An extremely strong prima
(2) Damage, potential or actual, must be very
serious for the applicant; and
(3) Clear evidence that
the defendants have the material in question and are likely
to destroy it. 
D. Recent cases
In Down, Re the court found that an Anton
Piller order for the seizure of corporate documents such as
minute books and share certificates clearly was “beyond the
class of documents which Lord Denning addressed in Anton
In Neopost, the court initially
granted an Anton Piller order, but as a result of the applicant’s
failure to search the company name, the order failed to name
the proper company as a defendant in this action. Accordingly,
Neopost failed to obtain the Anton Piller order against PCAN
for as the court stated at paragraph 15, “The element of surprise
is now gone.”
In Celanese Canada Inc. v. Murray
Demolition Corp, the court repeated
the rule as set out in Anton Piller, that an Anton Piller
order does not authorize anyone to enter the defendants' premises
against their will. The Court in Celanese elaborates
on the serious nature of an Anton Piller order and at paragraph
21, reminds users that the primary purpose is to preserve evidence,
not use it. It was not appropriate for the executors of the
order to open sealed containers without the presence of both
parties. Opening the containers was found by the court to fall
short of the standard of care required when dealing with items
obtained by way of an Anton Piller order.
1. Select your remedy carefully
having regard to the objectives of the client.
2. Make full disclosure, both
for and against.
3. Draft documents succinctly
and clearly attaching the ratio of the case to the facts of
This title pays homage to the 1970’s ABC television educational
R.S.O. 1990, c. C.43, as am.
R.R.O. 1990, Reg. 194 as am.
R.J.R. MacDonald Inc. v. Canada (Attorney
General),  1 S.C.R. 311 [hereinafter “RJR MacDonald”].
RJR MacDonald, ibid. at para. 49.
RJR MacDonald, supra at note 5 at para. 54.
RJR MacDonald, supra at note 5 at para. 55.
RJR MacDonald, supra at note 5 at para. 64.
(2002), 206 N.S.R. (2d) 312, (N.S.C.A.).
(2000), 189 D.L.R. (4th) 377 (Ont. C.A.) (appeal
of this decision allowed on other reasons).
2002 CarswellAlta 1042 (Alta C.A.).
Third Chandris Shipping Corp. v. Unimarine S.A.;
The Pythis,  Q.B. 645 (C.A.).
West v. West (1997), 28 R.F.L. (4th) 399 (Ont.
Gen. Div.) at para. 17 [hereinafter “West”].
R.S.O. 1990, c. F. 3, as am.
1999 CarswellOnt 4245 (Ont. S.C.J.) [hereinafter “Zita”].
Chilian v. Augdome Corp. (1991), 2 O.R. (3d)
696 (Ont. C.A.) at para.55 [hereinafter “Chilian”].
West supra at note 14 at para. 18.
 O.J. 177 (Ont. U. F. C.) [hereinafter “Nash”].
Nash ibid. at para. 19.
2003 CarswellOnt 2614 (Ont. S.C.J.) at para. 21[hereinafter
2003 CarswellOnt 737 (Ont. S.C.J.) at para. 50.
Ho supra at note 21 at para.11.
Bronfman v. Bronfman (2000), 51 O.R. (3d) 336
(Ont. S.C.J.) [hereinafter “Bronfman”].
Bronfman ibid. at para. 18.
Proc v. Proc 1992 CarswellOnt 296 (Ont. Gen.
1995 CarswellOnt 2244 (Ont. Gen. Div.) at para.8 [hereinafter
Greer ibid. at para.8.
Bronfman supra at note 24, para. 28-31.
Lasch v. Lasch (1988), 64 O.R. (2d) 464 (Ont.
H.C.) [hereinafter “Lasch”].
Lasch ibid. at para.17.
Colebourne v. Colebourne (1981), 2 F.L.R.A.C.
104 (Ont. H.C.) at para. 6.
Nevarc Holdings Ltd. v. Orchid Communications Inc
(1990), 28 R.F.L. (3d) 330 (Ont. Gen. Div.).
(2002) CarswellOnt 2795 (Ont. S.C.J.) at para 371.
Ross v. Reaney 2003 CarswellOnt 2240 (Ont. S.C.J.)[hereinafter
Ross ibid. at para. 29
Laiken v. Tatsambong 2003 CarswellOnt 1318 (Ont.
S.C.J.) [hereinafter “Tatsambong”].
Chitel v. Rothbart (1982), 30 C.P.C. 205, 39
O.R. (2d) 513 (O.N.C.A.), [hereinafter “Chitel”].
Ho supra at note 21 at para. 10-13.
1987 CarswellBC 73 (B.C.S.C.).
Chitel supra at note 38 at para. 28.
 1 S.C.R. 2 [hereinafter “Aetna”].
R. v. Consolidated Fastfrate Transport Inc.
(1995), 40 C.P.C. (3d) 160 [hereinafter “Consolidated Fastfrate”].
Supra at note 37 at para. 20.
Neopost Canada Ltd. v. 566812 Ontario Ltd.
2003 CarswellOnt 3505 at para. 15 (Ont. S.C.J.) [hereinafter
Piller KG v. Manufacturing Processes Ltd., ]1976] 1
Ch. 55 (C.A.) [hereinafter “Anton Piller”].
Adobe Systems Inc. v. KLJ Computer Solutions Inc.,
 3 F.C. 621 (F.C.T.D.) at para. 35.
2003 CarswellBC 1061 (B.C.C.A.) [hereinafter “Down”].
Down ibid. at para. 6.
Neopost supra at note 45 at para. 15.
Celanese Canada Inc. v. Murray Demolition Corp
2003 CarswellOnt 4146 (Ont. S.C.J.) at para. 6 [hereinafter
Celanese ibid. at para 30.