In Leitch v. Novac (2020 ONCA 257) the Ontario Court of Appeal held that “invisible litigants” cannot impede family law proceedings with impunity. Writing for the Court, Houringan J. described these invisible litigants as the parties’ extended relatives who insert themselves into family law proceedings far beyond the permissible grounds of providing emotional support. Rather, invisible litigants exacerbate litigation by encouraging the parties to advance needlessly adversarial positions and by helping to shield a party’s income and assets from the courts.
The parties in this case were married for 17 years. They have teenage twin daughters. The Applicant-appellant (“Leitch”) is a law professor and mother of the children. The respondents are the children’s father (“Novac”), his casino management company (“Sonco”), members of the Novac family, two family trusts, and directors of Sonco.
This case arose when Leitch filed for divorce and corollary relief from Novac. She subsequently amended her pleadings to include a claim of conspiracy against the above-noted respondents. On application by the non-family respondents, Justice Cory Gilmore of Ontario’s Superior Court held that Leitch’s conspiracy claim was appropriate for partial summary judgement.
In the summary judgment proceeding, Leitch argued that the respondents conspired to withhold business income from Novac until his divorce proceedings were completed. This allegation principally arose with regards to a buy-out of Sonco’s five-year management agreement with an Alberta Casino. Under that agreement, Novac was to receive 40% of the contract price as management fees. Consequently, Novac was entitled to 40% of Sonco’s $5.75 million buy-out as income (i.e. $2.3 million). Instead, the respondents diverted this income away from Novac by arranging a loan between Novac and his father. Memos and emails between Sonco’s Chief Financial Officer, Novac, and Sonco’s accountant suggested that this loan was structured with the purpose of shielding Novac’s share of the buy-out proceeds from Leitch’s corollary support claims.
In her decision, Justice Gilmore, as the motion judge, dismissed Leitch’s conspiracy claim on two grounds. First, she found that Leitch’s evidence failed to prove that Novac had the requisite knowledge to have committed the tort. Furthermore, the summary judgment appears to have been decided, in part, because no funds were actually transferred between the defendants.
Second, Judge Gilmore dismissed the claim on policy grounds. She held that the circumstances were analogous to Frame v. Smith, 1987 CanLII 74 (SCC), wherein the Supreme Court of Canada restricted conspiracy claims with regards to custody and child support. If conspiracy claims were not so restricted, Judge Gilmore reasoned that they would “become the new norm” in any family law case where a “payor spouse, in conjunction with a new spouse/relative/business partner, did not fully disclose income, unreasonably deducted expenses, or received income in the form of cash or goods” (para. 41). In effect, she surmised that conspiracy claims would become a form of punitive damages” (ibid.). Instead, she held that the existing legislation and its associated guidelines constitute a complete code from which Leitch could have sought an imputation of income against the father.
In her summary judgement, Justice Gilmore dismissed Leitch’s conspiracy claim and awarded a total of $1.2 million in costs against her for the proceedings.
The Court of Appeal found that Justice Gilmore made palpable and overriding errors of fact and law. Taken in turn, she misunderstood critical email evidence relating to the alleged conspiracy that were sent between Sonco’s Chief Financial Officer, accountant, and Novac. Next, the Court of Appeal also suggested that Justice Gilmore may have erred in law by accepting the argument that the tort of conspiracy requires an actual transaction, when, in fact, a temporary withholding of funds to impede another party’s entitlement can constitute an “act in furtherance to a conspiracy” (para 51).
On the public policy basis for dismissing Leitch’s claim, the Court of Appeal rejected Justice Gilmore’s reasoning because limiting the tort of conspiracy from family law proceedings would enable invisible litigants to interlope in court proceedings with impunity. While Justice Gilmore was correct in holding that an imputation of income claim would enable a claimant to get access to otherwise withheld funds, this remedy does not address the subsequent enforcement problem that arises when a payor has made themselves creditor-proof by conspiring with invisible litigants (para. 47).
Finally, the Court of Appeal made two further procedural comments. First, it held that this case should not have been bifurcated because the factual basis for Leitch’s conspiracy and support claims were indistinguishable. Contrary to the principle established in Hryniak v. Mauldin, 2014 SCC 7, this created the “substantial risk of inconsistent outcomes” between the summary judgement and the subsequent trial. Second, the Court of Appeal found the motion judge’s costs award “troubling.” Citing Yaiguaje v. Chevron Corporation, 2017 ONCA 827, the Court of Appeal reaffirmed the courts’ obligation to ensure that protection orders, such as security for costs, are not misused as litigation tactics. In this case, the motion judge should have considered the order holistically, assessing whether the overriding interests of justice are served by the order sought. In other words, the motion judge’s costs awards were excessive because they would have impeded Leitch’s ability to proceed with the subsequent trial.
Due to Justice Gilmore’s errors of fact and law, the Ontario Court of Appeal remitted this case back to the Superior Court for a re-determination at trial. The $1.3 million dollars in costs were set aside, and Leitch was awarded costs on the appeal.
For our readers, the principle provided by Leitch v. Novac is that family members acting as invisible litigants are not immune from liability.