Siegel's Family Court Calendar

“So while the proper interpretive framework for assessing a domestic contract is statute-specific, useful principles emerge from Miglin and this Court’s subsequent jurisprudence that aid in this judicial assessment. As a starting point, domestic contracts should generally be encouraged and supported by courts, within the bounds permitted by the legislature, absent a compelling reason to discount the agreement (Miglin, at para. 46; D.B.S., at para. 76; Rick, at para. 45). This deference flows from the recognition that self-sufficiency, autonomy and finality are important objectives in the family law context (Miglin, at para. 28). Not only are parties better placed than courts to understand what is fair within the context of their relationship, but the private resolution of family affairs outside the adversarial process avoids the cost and tumult of protracted litigation (paras. 45-46; see also Association de médiation familiale du Québec v. Bouvier, 2021 SCC 54, at paras. 44 and 134).

At the same time, negotiations over domestic contracts take place in a singularly challenging environment, often at a time of acute emotional stress, “in which one or both of the parties may be particularly vulnerable” (Miglin, at para. 74; see also Rick, at para. 47; C. Rogerson, “Miglin v. Miglin, 2003 SCC 24: ‘They are Agreements Nonetheless’” (2003), 20 Can. J. Fam. L. 197, at p. 225). In this context, the simple application of ordinary principles of contractual validity may be inadequate to quiet concerns of imbalance and exploitation (Miglin, at para. 77; M. Shaffer, “Domestic Contracts, Part II: The Supreme Court’s Decision in Hartshorne v. Hartshorne” (2004), 20 Can. J. Fam. L. 261, at p. 286). Rather, judges must approach family law settlements with a view to balancing the values of contractual autonomy and certainty with concerns of fairness. In essence, judges are to review domestic contracts with particular sensitivity to the vulnerabilities that can arise in the family law context, without presuming that spouses lack the agency to contract simply because the agreement was negotiated in an emotionally stressful context (Miglin, at para. 82; see also R. Leckey, “Contracting Claims and Family Law Feuds” (2007), 57 U.T.L.J. 1, at p. 14; Bailey, at p. 102 (citing the gendered unfairness that may arise from presuming incapacity to contract where a bargain is struck in an emotional context)).

Concern about vulnerabilities may be countered by the presence of procedural safeguards. For example, full and frank disclosure of all relevant financial information between the parties can go far to assuage concerns of informational asymmetry (Rick, at para. 47; Colucci v. Colucci, 2021 SCC 24, at para. 51). Similarly, professional assistance, such as independent legal advice, can serve as a hallmark of a fair bargaining process (Miglin, at para. 82; Rick, at paras. 60-61), although the curative impact of legal advice in the negotiation of domestic contracts should not be taken as given. As La Forest J. recognized, dissenting in Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] 1 S.C.R. 857, divorce is one of the most stressful periods in an individual’s life and many people do “very unwise things, things that are anything but mature and sensible, even when they consult legal counsel” (p. 883). Courts must have careful regard to the financial and emotional pressures that characterized the relationship, and not simply presume that legal advice immunizes a contract from unfairness.

The rigour of a court’s review of a domestic contract depends on the authorizing statute. Some statutes provide that a domestic contract may only be set aside where it is unconscionable, for example (see Family Law Act, R.S.O. 1990, c. F.3, s. 33(4)), while others use the measures of “inequitable” or “undue influence” (see Marital Property Act, R.S.N.B. 2012, c. 107, s. 43; Family Property and Support Act, R.S.Y. 2002, c. 83, s. 2(4)). In any case, however, fairness review of a domestic contract typically looks both to the circumstances surrounding the contract’s execution and to the substance of the agreement, where such a review is authorized by governing legislation. As Abella J. stated in Rick, at para. 50: “. . . the best way to protect the finality of any negotiated agreement in family law is to ensure both its procedural and substantive integrity in accordance with the relevant legislative scheme”.

An assessment of the substance of the agreement is generally determined by reference to the governing legislative regime. The purposes and criteria of the statute provide an objective yardstick against which to assess the parties’ subjective understanding of what is fair, and limit the risk that parties will depart significantly from public policy goals expressed by the legislature. Measuring the substance of the agreement against the legislation also helps to promote greater certainty for parties, who may rely on their statutory entitlements as a reference point in organizing their personal affairs (M. Shaffer and C. Rogerson, “Contracting Spousal Support: Thinking Through Miglin” (2003), 21 C.F.L.Q. 49, at p. 61).

In sum, our jurisprudence on domestic contracts, beginning with Miglin, values the principles of autonomy and certainty by encouraging parties to arrange their intimate affairs outside the court system. But the emotional complexities of family dynamics make contracting over domestic affairs unlike regular arm’s length transactions. The unique context out of which these agreements arise requires courts to approach them with keen awareness of their potential frailties to ensure fairness, having regard for the integrity of the bargaining process and the substance of the agreement.”

            Anderson v. Anderson, 2023 SCC 13 (CanLII) at 33-38

“This Court has held that orders making findings of contempt are final orders: Bush v. Mereshensky, 2007 ONCA 679, 229 O.A.C. 200, at paras. 9-10; Mantella v. Mantella, 2009 ONCA 194, 246 O.A.C. 386, at para. 17; see also Leeming v. Leeming, 2016 ONSC 1835, 78 R.F.L. (7th) 120 (Div. Ct.), at para. 16.

However, an order dismissing a contempt motion is not necessarily a final order. This is because not all orders which dismiss contempt motions finally determine the rights of the parties. Whether an order dismissing a contempt motion is a final or an interlocutory order must be assessed on a case-by-case basis. Orders dismissing a contempt motion are final only where there are no ongoing proceedings and the party seeking the order has no other means of obtaining relief arising out of the failure to abide by the terms of the order: Wang v. Li, 2023 ONCA 119, at paras. 15-16; Chirico v. Szalas, 2016 ONCA 586, 132 O.R. (3d) 738, at paras. 36-49; Overtveld v. Overtveld, 2022 ONCA 269, at para. 7.”

Gueye v. DiNino, 2023 ONCA 342 (CanLII) at 7-8

“I am aware of the Parenting Plan Guide (“PPG” or “Guide”) published by the Association of Family and Conciliation Courts – Ontario (AFCC-O) which provides a good up-to-date summary of the social science research.

The Guide has some useful comments regarding children Spencer’s age, keeping in mind that she is currently age 9 and will be 10 in November.

Regarding ‘Early School Age Children: 6 to 9 Years’, the Guide says that “Children of this age can more easily understand and manage differences in parenting styles and blocks of time away from each parent due to their more developed understanding of time.”  This is relevant because it is clear from the SASAC notes that the child felt she had to choose between her mother and the father in absolute terms, and when the Family Monitor tried to explain to Spencer that a proposed visit was only 1 hour with her father and she would be with the mother for the rest of the week, Spencer struggled.  She was 6 years old at that time and at the early stage of this age category.  The Guide further notes that “Children of this age often feel they need a parent’s “permission” to see the other parent.  They have developed an appreciation for others’ points of view; if they believe that a parent is unsettled or anxious about their spending time away, the child may have feelings of guilt, anxiety, or even anger.”  This was certainly seen at the SASAC visits.  It is possible that now, approaching the end of this age category, these feelings have waned, although there are further concerns noted in the next age category.  The Guide says that “at this age, children should have very significant involvement with both parents.”

Regarding ‘Later School Age Children: 10 to 12 Years’, a grouping Spencer will soon join, the Guide comments that “If there is a high level of conflict, and one or both parents are undermining the child’s relations with the other parent, this is an age where some children may strongly identify with one parent.  It is not unusual for children of high conflict parents in this age range to align with one parent and start resisting contact with the other parent.  In extreme cases, one parent may intentionally engage in a pattern of behaviour intended to alienate the child from the other parent.”  The Guide says that “Children of this age group can do well with a range of different [parenting] plans, but should have frequent contact with both parents.”  The Guide adds regarding this older group “Resistance to contact is usually best understood as a “family systems problem” that should be addressed by the child and both parents, if possible, through discussion and perhaps voluntary therapeutic involvement for all family members, but if necessary through the legal process. The support of a favoured parent for a strong relationship with the other parent is very important, and, unless there are serious issues of poor parenting, is usually in the long-term interests of the child.”

Hutchings v. Hutchings, 2025 ONSC 7327 (CanLII) at 54-57

“That finding then brings me to a consideration of the decision of Ducharme J. (as he then was) in Shepley v. Shepley, 2006 CanLII 1924 (ON SC), [2006] O.J. No. 293, 24 R.F.L. (6th) 422 (S.C.J.).

In Shepley – a case that I consider to be quite similar in various material respects to the case at bar – at the date of separation, the applicant husband earned approximately $50,000 per annum as a bank manager. Shortly before the parties’ separation, the husband inherited approximately $900,000 from his parents, comprised primarily of stocks. On the strength of this inheritance from his parents (which the parties agreed was excluded property under s. 4(2) of the Family Law Act), the husband agreed to pay spousal support of $3,000 per month to the respondent wife. However, following separation, the husband incurred a loss of more than $480,000 in his portfolio by reason of a devaluation of his principal stock. Further, when targeted for replacement at his employing bank by a younger employee, the husband accepted a termination package. As a result, the applicant husband’s income from all sources fell to $1,325 per month, comprised of $100 per month in dividends, generated from capital and the remainder in pension income. The husband then brought a motion to terminate his $3,000 spousal support obligation.

In allowing the husband’s application, Ducharme J. reasoned as follows:

Under the Divorce Act, the court in appropriate circumstances may regard the income from capital assets as available for the purpose of determining whether spousal support is payable. In the same way, the court may deem particular assets to be income-producing. But for good or ill the (Ontario) Family Law Act considers inherited property to be exempt from sharing upon the breakdown of the marriage. It is silent on the issue of whether income from such property after breakdown should be exempt. Accordingly, under the provincial legislation, as the cases to which I have referred make clear, such income, as with all other kinds, is to be considered in any child or spousal support matter: Ibid, at 59.

In the result, Ducharme J. concluded as follows:

Painful as the result must surely be for Mrs. Shepley, I conclude on the facts of this case that Mr. Shepley retired from his employment position for valid reasons, that he made the decision out of concern for his health, not to evade his support obligation, and that as a result of his retirement he no longer has the means or the ability to pay spousal support to Mrs. Shepley from his income and no obligation in law to share in property that Ontario law exempts from sharing at the time of separation. It would be unjust, and, indeed, unconstitutional to share as “support” that which the law has exempted from sharing as property. In other facts and circumstances, where, say, exempt property is intact and generating income — for example, rental property or a family business — the result may well be different.

In all the circumstances, I find that Mr. Shepley had no obligation in law to preserve his exempt property, or to maximize his future income, to ensure an ongoing spousal support obligation: Ibid, at paras. 72-73. [Emphasis supplied.]

In my view, for the same reasons given by Ducharme J. in Shepley, the respondent husband here is not required to share with the applicant wife by way of a lump sum interim spousal support award those same capital assets that Ontario law considers to be exempt or excluded property for the purposes of net family property sharing.

That said, the respondent husband here acknowledges that, for spousal support purposes, as the Supreme Court of Canada held in Leskun v. Leskun, a capital asset is part of a support payor’s “means” and, as our court held in Laurain v. Clarke:

The court may therefore base the amount of support which a payor must pay on the income that an asset, such as money in the bank, a pension, trust, or annuity, is capable of generating.

I interpret the Court’s decision in Leskun to mean that a capital asset that a person receives in the form of periodic payments should not itself be treated as income for the purpose of calculating support, but should be treated as part of his means, so that the income which it is reasonably capable of generating should be included in his income for the purpose of calculating his support obligation. [Emphasis added.] Laurain v. Clarke, 2011 ONSC 7195, 16 R.F.L. (7th) 316 (S.C.J.), at paras. 44-45.

Casier v. Casier, 2021 ONSC 3407 (CanLII) at 112-118

“A parent seeking supervised parenting time for the other parent bears the burden of establishing that supervision is necessary: W.H.C. v. W.C.M.C., 2021 ONCJ 308, Klymenko v. Klymenko, 2020 ONSC 5451.

In Stec v. Blair, 2021 ONSC 6212, at paras. 22-24, Fowler Byrne J. reviewed the law related to supervised access and explained the reason that it is not automatically granted:

a.   Supervised access is a great intrusion into the relationship between a child and parent and its continued imposition must be justified: Young v. Hanson, 2019 ONSC 1245, at para. 32, also cited in G. v. F., 2021 ONSC 1362 at para. 47.

b.   The intrusion is less striking when supervision is by a family member in a home setting, but nonetheless, it is not a long-term solution. Supervised access is designed to provide a temporary and time-limited measure, to resolve a parental impasse over access, rather than provide a long [term] solution: M. (B.P.) v. M. (B.L.D.E.) 1992 CanLII 8642 ONCA, 97 D.L.R. (4^th) 437, at para. 33 (Ont. C.A.).

c.   The onus lies on the person seeking that parenting time be supervised, to show that such supervision is necessary. The greater the restriction on regular parenting time, the more important it is to show why the restriction is necessary: Liu v. Xie, 2021 ONSC 222, at para. 69, Docherty v. Catherwood, 2015 ONSC 5240, para. 38.

Supervised access “is beneficial for children who require gradual reintroduction to a parent, or whose safety requires it until such time as the parent is sufficiently rehabilitated and a child is no longer in danger or physical or emotional harm.” Najjardizaji v. Mehrjerdi, 2004 ONCJ 374 (CanLII), [2004] O.J. No. 5472 (OCJ).

The Courts have taken the view that because supervised access creates an artificial environment, it should not be ordered as a long-term arrangement: Hunt v. Hunt, 2023 ONSC 5411, at para. 43.”

Gerasimopoulos v. Sambirsky, 2024 ONSC 2368 (CanLII) at 25-28

“There are three bases for the entitlement to spousal support, being compensatory support, non-compensatory support and contractual support. Compensatory support is meant to acknowledge the contributions of a spouse to the relationship and any financial opportunities that the spouse has forgone for the sake of the family or other spouse. Generally, compensatory awards are seen where one spouse has sacrificed career opportunities, has made significant contributions to the household, and/or where one spouse has made significant contributions to the other spouse’s career: see Kerr v. Erland, 2014 ONSC 3555. Non-compensatory support is based on the need of the recipient and may include a reduction in the recipient standard of living in comparison to the marital standard of living: see Switzer v. Switzer, 2021 ONSC 5760; Gray v Gray, 2014 ONCA 659, 122 O.R. (3d) 337.”

            Boutin v. Lucitt, 2023 ONSC 2753 (CanLII) at 113

“Kathleen also kept referring back to the original supervision order against Aamir, and cited Aamir’s concession that Kathleen was the child’s primary caregiver.  The child was less than a year old.  This was not so much a concession but a fair description of the bond between mother and her nursing baby.  Kathleen has kept raising this point-in-time concession at the emergency motion to score legal points.  Her reliance on this “primary caregiver” label was essentially a proxy for the presumption of custodial advantage under the discredited “tender years” doctrine: See G.C. v. R.D.P., 2021 ONSC 4206 (CanLII), at para. 97.  In Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 45, the Supreme Court of Canada cautioned against the use of such presumptions:

To the extent that the proposed presumption would give added weight to the arrangement imposed by the original custody order, it may diminish the weight accorded to the child’s new needs and the ability of each parent to meet them.

The above extract from Gordon described the obvious logic that children’s needs change depending on their stage of development and individual characteristics.  In Hatab v. Abuhatab, 2022 ONSC 1560 (CanLII), at para. 64, this court held that because contact with both parents is the child’s right, the court has a duty to counter a parent’s unreasonable resistance to the other’s parenting time by increasing the opportunities for the child to enjoy the love and support of that other parent.”

          Shipton v. Shipton, 2023 ONSC 2711 (CanLII) at 14-15

“The leading case on imputation of income is Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.) (“Drygala”). At paragraph 23 of Drygala, the Court of Appeal set out a three-part test to determine whether income should be imputed:

1. 1. 1. 1. 1. Is the spouse intentionally under-employed or unemployed?
            2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
            3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

The Ontario Court of Appeal set out the following principles in Drygala:

a.   There is no need to find a specific intent to evade child support obligations before income can be imputed;

b.   “Intentionally” means a voluntary act. The parent required to pay is intentionally underemployed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income;

c.   There is no requirement of bad faith for income to be imputed;

d.   A court cannot arbitrarily impute an amount of income. There must be some factual basis in the evidence for the amount imputed. If the parent does not provide evidence on types of jobs available, hourly rates, and available hours of employment, a court may impute a percentage of what the person had been earning;

e.   A parent who changed jobs to increase career satisfaction is not intentionally underemployed;

f.   The Guidelines depend on full disclosure to determine support. A payor who fails to make full disclosure cannot complain if a court draws an adverse inference against him or her on the basis of the available facts;

g.   Section 1 of the Guidelines stipulates that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning;

h.   There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs. A spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations;

i.   When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are: age, education, experience, skills, health, availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations, and the hourly rate one could reasonably be expected to obtain;

j.   The purpose of child support is to assist the custodial parent in meeting the day-to-day expenses of raising children. A party seeking retroactive child support must provide evidence that the child suffered from a lack of financial support during the period in question. Ability to pay, as well as need, must be considered by the trial judge in the exercise of his or her discretion; and

k.   The court has the discretion to award retroactive child support that is fit and just in the circumstances.

As indicated, the burden initially rests on the party seeking the imputation of income to demonstrate that the other party is intentionally under-employed or unemployed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. If the court is not satisfied that the party is intentionally under-employed or unemployed, the analysis ends.

If the party seeking the imputation of income is able to meet the burden, that burden then shifts to the other party to demonstrate that the intentional under-employment or unemployment is required based on their needs.

The second step of the Drygala test is generally treated as an overall test of reasonableness: Pey v. Pey, 2016 ONSC 1909 (Ont. S.C.J.). Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position he is taking: Lo v. Lo, 2011 ONSC 7663, 15 R.F.L. (7th) 344 (Ont. S.C.J.); Charron v. Carrière, 2016 ONSC 4719.

The Court must have a rational and solid evidentiary basis to justify an imputation. The onus is on the person requesting an imputation of income to establish this evidentiary basis: Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17 (Ont. C.A.); Charron v. Carrière, supra; Sullivan v. Sullivan, 2014 ONSC 930 (Ont. S.C.J.).

There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children: L. (N.) v. P. (B.), 2000 CanLII 22516 (ON SC), [2000] O.J. No. 2574, 2000 CarswellOnt 2487 (Ont. S.C.J.).

The determination to impute income is discretionary, as the court considers appropriate in the circumstances. Therefore, the court may decide not to impute income where the payor establishes the reasonableness of his or her decision or his or her situation: Cole v. Freiwald, 2011 ONCJ 395 (Ont. C.J.).

Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute: Thompson v. Thompson 2013 ONSC 5500 (CanLII), [2013] CarswellOnt 12392 (Ont. S.C.J.)]; Korwin v. Potworowski, 2007 CarswellOnt 6852 (Ont. C.A.).”

Zaharia v. Zaharia, 2025 ONSC 2665 (CanLII) at 29-37

“Contrary to the Respondent’s submissions, the fact that the PKR’s currency exchange rate decreased by about 37 percent since the date of separation, thereby devaluing her current bank balance, is not sufficient, in the circumstances of this case, to warrant unequal distribution pursuant to s. 5(6)(h) of the FLA: see, Lo v. Lo, 2011 ONSC 7663, 15 R.F.L. (7th) 344, at paras. 227-38.

In Lo, the value of the husband’s pension of $173,530.60 at the date of separation had decreased by about $47,097.65 as a result of market forces.  The resultant drop was through no fault of either party.  Citing the lead Court of Appeal case Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, the court noted that “circumstances which are ‘unfair’, ‘harsh’ or ‘unjust’ do not meet the test [of unconscionability]”: at para. 47. The decreased value from a depreciating PKR does not shock the court’s conscience.”

            Merchant v. Amir Ali, 2024 ONSC 2522 (CanLII) at 68-69

“On this motion, the applicant does not ask the court to determine whether a secret trust exists. However, in order to understand the significance of the parties’ arguments, it is helpful to understand what a secret trust is and is not.

The secret trust is described at paras. 46–48 of Gefen Estate v. Gefen, 2022 ONCA 174, 161 O.R. (3d) 267:

[46]   A. H. Oosterhoff describes secret trusts in “Secret and Half-secret Trusts,” Ontario Bar Association Continuing Legal Education, Trusts, Trustees, Trusteeships – All You Need to Know and More…, September 18, 2006, at p. 3:

A secret trust comes into existence when a testator leaves property to a person and that person secretly agrees with the testator to hold the property for the benefit of another person. There are two kinds of secret trust. With a fully-secret trust the testator leaves the property to a person apparently absolutely. In other words, the will discloses neither the existence of the trust, nor the name of the beneficiary. With a half-secret trust the will leaves the property to a person in trust, but the will does not disclose the beneficiary. If the requirements for the trust are satisfied, equity will enforce the trust and ensure that the property is given to the intended beneficiary of the trust.

[47]  Secret trusts do not comply with the formal requirements of statutes governing wills, but equity intervenes to enforce the trust. Traditionally, this was seen as a means to avoid fraud, as absent intervention by equity, the trustee who received property might keep it, rather than abiding by the terms of the trust.

[48]  The trust was secret for a variety of reasons. As explained by A.H. Oosterhoff, Robert Chambers & Mitchell McInnes, Oosterhoff on Trusts: Text, Commentary and Materials, 8th ed., (Toronto: Carswell, 2014), at p. 870:

A testamentary gift that favours one sibling over another, or that reveals the existence of an illegitimate child or secret lover, may generate ill-will or hostility amongst family members and close friends. Better to postpone the storm until after one is gone. Alternatively, a testator may be motivated by a desire for secrecy even after death. Once admitted to probate, a will becomes a public document, available to anyone for a fee. A secret trust allows a testator to conceal the fact that property has been left to, say, a political organization with unpopular views.

The elements of a secret trust were described by the British Columbia Court of Appeal in Champoise v. Prost, 2000 BCCA 426, 77 B.C.L.R. (3d) 228, at paras. 15-16:

[15] A secret trust arises where a person gives property to another, communicating to that person an intention that the property be dealt with in a specific way upon the happening of an event, and the donee accepts the obligation. The essential elements are the intention of the donor, a communication of the intention to the donee and acceptance of the obligation by the donee.

[16] In addition to these requirements for an enforceable secret trust, the three certainties necessary for any express trust must be exhibited; the words making the trust must be imperative, the subject of the trust must be certain, and the object or person intended to take the benefit of the trust must be certain. Further, those certainties must be exhibited at the time the trust is created. [Citations omitted]

As the respondents submit, the Court of Appeal observed, at para. 50 of Gefen Estate, that a secret trust does not arise where a testator was simply providing the trustee with guidance as to her wishes, rather than intending to establish a trust.”

            Prosser v. Jaun, 2025 ONSC 2634 (CanLII) at 7-10