Executive Summary: Key Legal and Evidentiary Issues

• Extension of time to appeal turned on the “interests of justice” test, including intention to appeal, length and explanation of delay, prejudice, and merits of the proposed appeal.
• Mr. Pham’s chronic non-compliance with court orders, late procedural steps, and pattern of delay were treated as hallmarks of frivolous and vexatious litigation justifying strict procedural consequences.
• The striking of Mr. Pham’s pleadings and restriction of his trial participation was upheld as a proper exercise of discretion in light of repeated breaches and failure to meet disclosure and scheduling obligations.
• Occupation rent for the matrimonial home was awarded to Ms. Nguyen based on an expert valuation and Mr. Pham’s prolonged refusal to sell, which deprived her of access to her equity while she lived in modest rented accommodation.
• Post-separation financial adjustments were carefully calculated on documentary evidence, giving Mr. Pham credit for mortgage, tax, and insurance, while rejecting unsupported claims of additional expenses.
• Findings that Ms. Nguyen left the matrimonial home due to Mr. Pham’s violence, and that his share of sale proceeds should be held in trust as security for costs, were accepted as factual and discretionary determinations entitled to significant appellate deference.

Facts and procedural history
Ms. Nguyen and Mr. Pham were married and lived together in a matrimonial home that represented their only significant asset. They separated in 2015, and Ms. Nguyen commenced formal divorce and family law proceedings by application in January 2021. After the separation, Mr. Pham remained in the matrimonial home with the parties’ son, while Ms. Nguyen and the parties’ daughter left and moved into the basement of Ms. Nguyen’s brother’s home. Ms. Nguyen and her daughter lived in cramped conditions and Ms. Nguyen struggled financially, notwithstanding that she voluntarily paid support for the parties’ son until he completed his post-secondary education. Over the years, Mr. Pham consistently refused to agree to sell the matrimonial home, effectively denying Ms. Nguyen access to her equity in their only major asset for almost nine years. The courts found this refusal to be unreasonable and unfair in light of her precarious financial position. During the course of the family case, Mr. Pham developed a pattern of litigation conduct that the courts regarded as unreasonable. This included failures to comply with court orders, missed deadlines, last-minute consents, and non-compliance with procedural rules. He did not file an updated sworn financial statement, an updated net family property statement or comparison, expert medical evidence, or an updated trial scheduling endorsement form required to support his spousal support claim. Nor did he comply with the timelines set by a trial management judge for filing trial affidavits and related materials. These defaults caused delay, increased costs, and undermined the orderly preparation of the case for trial. When the matter came before the application judge (Vella J.) for trial, Ms. Nguyen brought a motion to strike Mr. Pham’s pleadings and affidavit evidence and to restrict his participation. The judge had already documented a history of Mr. Pham’s delay and non-compliance in prior endorsements, noting that this was a 2021 application that had been dragged out. On the first day of trial, the judge denied Mr. Pham’s request for an adjournment and granted Ms. Nguyen’s motion to strike, ordering that Mr. Pham’s Answer and affidavit materials be struck and limiting his participation to observing the evidence and making closing submissions. The trial then proceeded effectively as an uncontested matter on Ms. Nguyen’s evidence. In the substantive judgment released on August 5, 2025, the application judge addressed several core financial and factual issues. She applied the test for occupation rent under Ontario law, concluded that Mr. Pham should pay occupation rent for his exclusive use of the matrimonial home over a nine-year period, and accepted an uncontested expert calculation that quantified that rent at $56,590. She also performed a detailed post-separation accounting of expenses for the property—mortgage payments, property taxes, and insurance premiums—which Mr. Pham had made alone. On the documentary record, she determined that Ms. Nguyen owed Mr. Pham $41,447.19 for her share of those post-separation expenses. Another key factual determination was that Ms. Nguyen and the parties’ daughter were compelled to leave the matrimonial home because of Mr. Pham’s violence. The application judge accepted Ms. Nguyen’s uncontested evidence on this point and found that Mr. Pham’s behaviour contributed both to her departure and to the broader unfairness in the financial and living arrangements post-separation. The judge also considered Mr. Pham’s repeated failure to pay costs awards made in Ms. Nguyen’s favour during the proceedings. To protect Ms. Nguyen’s ability to recover costs, she ordered that previous costs awards be deducted from Mr. Pham’s share of the net proceeds of sale of the matrimonial home and that his remaining share be held in trust pending the determination of the overall costs of the application. This effectively used the main asset as security for Ms. Nguyen’s costs, given the court’s assessment of Mr. Pham’s history of non-payment and non-compliance. There is no indication in the material you provided that any insurance or policy wording, or any contractual policy clauses, were at issue in this litigation. The dispute revolved around family law rights and remedies—property division, occupation rent, post-separation adjustments, and costs—rather than the interpretation of an insurance policy or analogous contractual instrument.
 

The motion for extension of time to appeal
After the August 5, 2025 judgment, Mr. Pham sought to appeal. Under the applicable rules, he had 30 days to serve and file a notice of appeal. The record shows that he contacted his current counsel by at least August 27, 2025 and formally retained counsel by September 3, 2025, which the Court of Appeal accepted as evidence that he had formed an intention to appeal within the deadline, though only just. Despite this, the notice of appeal and certificate of evidence were served and an attempt was made to file them with the Court of Appeal only on September 5, 2025, one day late. The short, one-day filing delay might have been relatively minor in isolation, but the motion judge in the Court of Appeal emphasized that it did not stand alone. Mr. Pham then waited until October 27, 2025 to bring a motion to extend the time to serve and file his notice of appeal. The Court of Appeal found that this combined delay was more significant and consistent with his long-standing pattern of delaying conduct in the litigation. The explanation provided for the late filing was also found wanting. A paralegal from Mr. Pham’s counsel’s office swore that the notice of appeal had been filed on September 4, 2025 and that service on Ms. Nguyen’s counsel had been omitted through inadvertence. However, the only supporting exhibit was a copy of a notice of appeal dated September 4, 2025; there was no evidence that the court actually accepted that document for filing on that date. The documentary record instead showed that Ms. Nguyen’s counsel was first served, and an attempt at filing was made, on September 5, 2025. The motion materials were also silent on why Mr. Pham then delayed nearly two months before moving to regularize the appeal by seeking an extension of time. In assessing whether to grant the extension, the Court of Appeal applied the familiar framework for motions to extend time: whether an intention to appeal was formed in time, the length of and explanation for the delay, any prejudice to the responding party, and the merits of the proposed appeal. The court accepted that the intention to appeal was just barely formed in time, and that the bare one-day delay considered alone was not egregious. It also acknowledged that Ms. Nguyen might not suffer concrete prejudice strictly from that short timeline discrepancy. However, the court placed heavy weight on context. It found that Mr. Pham’s conduct over many years—unwarranted refusals, last-minute consents, persistent delay, non-compliance with rules and orders—amounted to a pattern of unreasonable behaviour characteristic of frivolous and vexatious litigation. The court concluded that the real prejudice to Ms. Nguyen was the prospect of being drawn into yet another round of meritless proceedings, with attendant delay and cost, when she was entitled to finality.
 

Appellate assessment of the proposed appeal
A central issue on the motion was whether Mr. Pham’s proposed appeal had sufficient merit to justify granting more time. The Court of Appeal emphasized that its role at this stage was not to decide the appeal but to determine whether the proposed grounds were so weak that he should effectively be denied the right to appeal. The court also noted that, in some cases, the lack of merit alone can be decisive in refusing an extension of time. Mr. Pham’s notice of appeal advanced five main grounds. First, he argued that the application judge erred in striking his pleadings and affidavit evidence at the start of trial and in limiting his participation to submissions. Second, he challenged the application judge’s application of the test for occupation rent. Third, he claimed that the judge incorrectly calculated the post-separation adjustments by failing to credit him for additional expenses relating to the home. Fourth, he asserted that the judge made a palpable and overriding error in finding that Ms. Nguyen was forced to leave the matrimonial home, arguing that this was unsupported by the evidence. Fifth, he attacked the order requiring that his share of the net sale proceeds from the matrimonial home be held in trust pending the determination of costs. The Court of Appeal systematically rejected each ground as lacking arguable merit. On the striking of pleadings, the court reaffirmed that, especially in family law, orders striking pleadings and restricting participation must be made sparingly and only in exceptional cases where no lesser remedy will suffice. However, it held that this was such a case. Mr. Pham had persistently failed to comply with court orders, ignored disclosure and scheduling requirements, and contributed to delay and increased costs. The application judge had carefully reviewed this conduct and delivered full oral reasons for the striking order earlier in the proceedings. The Court of Appeal concluded that she had properly applied the governing principles and that there was no realistic basis for appellate intervention. Regarding occupation rent, the Court of Appeal held that the application judge correctly applied the applicable test and reasonably exercised her discretion. The judge relied on an uncontested expert calculation to fix the occupation rent at $56,590 for the nine-year period during which Mr. Pham remained in the home. She was entitled to account for his steadfast and unfair refusal to sell the house, which prevented Ms. Nguyen from accessing her equity even as she lived in cramped rental accommodation and struggled financially. There was no error in principle or palpable and overriding error of fact shown on this issue. On post-separation adjustments, the application judge had recognized that Mr. Pham bore the carrying costs of the matrimonial home after separation. She reviewed the documentary evidence and credited him with mortgage payments, property taxes, and insurance premiums, ultimately determining that Ms. Nguyen owed him $41,447.19 for her share of those expenses. The Court of Appeal found that there was no evidence of further expenses for which he was entitled to reimbursement, and no basis to disturb the judge’s detailed calculation. As to the allegation that Ms. Nguyen was not forced to leave the home, the Court of Appeal held that the application judge was entitled to accept Ms. Nguyen’s uncontested evidence that she and her daughter left due to Mr. Pham’s violence. That was a classic factual finding based on the record before the trial judge and therefore attracted significant deference. The court saw no palpable and overriding error that could justify appellate interference. Lastly, on the order that Mr. Pham’s share of the net sale proceeds remain in trust pending costs determination, the Court of Appeal accepted the application judge’s reasoning. Given Mr. Pham’s failure to pay prior costs awards and his overall conduct, it was reasonable to ensure that funds would be available to satisfy Ms. Nguyen’s costs. Holding his share in trust as security for those costs was described as a sensible and discretionary measure. Again, no error of principle or material misdirection was identified.
 

Interests of justice and outcome
In its conclusion, the Court of Appeal returned to the overarching question: whether granting an extension of time to appeal would serve the interests of justice. The court underscored Ms. Nguyen’s circumstances—she was 61 years old, unemployed for several years, and of limited means apart from her share of the matrimonial home. For nearly nine years, she had been deprived of that equity by Mr. Pham’s refusal to sell. She had been forced to leave the home due to his violence yet continued to support their son through his education. Throughout the proceedings, she had acted reasonably and fairly, while Mr. Pham engaged in persistent delay and non-compliance. In this context, the Court of Appeal held that allowing a meritless appeal to proceed would be grossly unfair to Ms. Nguyen, who was entitled to closure. It stated that there comes a point where “enough is enough,” and that Mr. Pham had exceeded that point. The motion for an extension of time was therefore dismissed. In terms of financial consequences, the underlying family law decision included an award of occupation rent of $56,590 payable by Mr. Pham to Ms. Nguyen, set against a post-separation expense adjustment of $41,447.19 payable by Ms. Nguyen to Mr. Pham, along with previous and further costs awards in Ms. Nguyen’s favour to be satisfied from Mr. Pham’s share of the sale proceeds of the matrimonial home. In this Court of Appeal decision, Ms. Nguyen is the successful party: she successfully resists Mr. Pham’s attempt to extend time to appeal, and the court orders that she is entitled to her costs of the motion, to be deducted from Mr. Pham’s share of the net sale proceeds held in trust. However, the precise total monetary amount ordered in her favour across the trial judgment and this motion cannot be determined from the text provided, because the decisions do not quantify all costs awards or aggregate the various sums into a final net figure.