Siegel's Family Court Calendar

“The applicant submits that 100% of the capital cost allowance (“CCA”) deductions claimed by the respondent should be added back into income for child support purposes.

I begin by observing, as others have, that the consideration of the fairness of CCA deductions for child support purposes is a complex matter, that it should be raised between the parties before trial, that the party claiming the deduction should be given ample time to respond, and that there should be evidence, preferably expert evidence, upon which a decision can be made (A.E., supra, at para. 275; Kinsella v. Mills, supra, at para. 184, 230; Joy v. Mullins, supra, at para. 51).

In Egan v. Egan, 2002 BCCA 275, Newbury J.A. wrote (at para. 49) as follows:

… I would not want to be taken as endorsing the notion that at every family law trial or hearing of an application for child maintenance, CCA properly taken under the Income Tax Act is entirely ‘at large’ and that payor spouses may be routinely called upon to justify the purchase of every piece of equipment, the price paid, and the rate of depreciation claimed (the latter being, of course, a matter of regulation in the Income Tax Act) without counsel’s having provided the court with some reason to question what the Income Tax Act permits.  In other words, unless the CCA schedule attached to the payor spouse’s tax return or the answers to questions in discovery about claimed CCA, give rise to some concern that the equipment is not needed or used in the business, or that an inflated cost amount has been used, a judge sitting in a family law trial should not be expected to fulfill the role of a Revenue Canada tax auditor.  Although a “pragmatic approach” must be taken to the question at trial, counsel for the payee spouse should ensure that before the court is asked to make a determination with regard to CCA that differs from the amount of CCA deductible for income tax purposes, the matter has already been investigated to the extent permissible under the court rules and the Guidelines, and that there exists at least some prima facie basis for embarking on any wholesale re-examination of CCA deductions.

Here, no complaint about the CCA deductions claimed by the respondent was particularized.  No effort to analyze the issue was undertaken by the applicant prior to trial. No notice was given.  No expert evidence was tendered.  Instead, all that is before me is the respondent’s tax returns, including their CCA calculations, and the lay understanding of those calculations offered by the respondent in cross-examination.  The applicant’s submissions, written and oral, do not assist in explaining why I should find that any of the CCA deductions should be added to the respondent’s income.  There is certainly no detailed analysis of the deductions.

Apart from one error, conceded by the respondent, I have been given no reason to believe that the CCA deductions in the respondent’s returns are not fair and appropriate. While I have resisted fulfilling the role of a CRA tax auditor, to paraphrase Justice Newbury, I have reviewed the documents and the evidence and can see no prima facie case for any objection to the deductions other than the one conceded by the applicant.  There is simply no evidence upon which to add the deductions (or some portion of them) back into income.  The items said to have depreciated are all clearly items used in a landscaping business, were not leased, and were not the subject of loans.

In this respect, the situation in this case is similar to that faced by Chappel J. in Kinsella v. Mills, supra (at para. 230):

With respect to the capital cost allowance claim of $8,491.13, the Applicant did not raise any specific issues as to the appropriateness of the amount claimed. As I have discussed in my review of the law on this issue, the calculation and assessment of this expense for reasonableness is a very complex matter. If the Applicant had wished to challenge this expense, she should have in fairness given the Respondent some indication of her intention to do so, in order that he could respond. The Statement of Business or Professional Activities includes a schedule outlining the accountant’s calculation of the expense. That calculation indicates that the Respondent had made significant investments in lawn mower equipment in 2009. I am satisfied that the Respondent required vehicles and extensive heavy equipment as a result of the nature or the business, and that the nature of the equipment was such that it would depreciate over time and have to be replaced. There is no evidence to suggest that the capital cost allowance claimed was artificially increased for the purpose of reducing income for tax purposes. Accordingly, I conclude that the expense was a reasonable one [emphasis added].

Like Chappel J., I have concluded that the CCA deductions claimed here were reasonable.  They need not be added to the respondent’s income (see also, Joy v. Mullins, supra, at para. 74).”

          A.J. v. D.C., 2023 ONSC 1629 (CanLII) at 68-74

“The Ontario Court of Appeal has issued many decisions explaining the difference between a final and an interlocutory decision. One such recent decision is 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822 at para. 7, where the court offered this succinct distinction:

A final order disposes of the litigation, or finally disposes of part of the litigation: Ball v. Donais (1993), 1993 CanLII 8613 (ON CA), 13 O.R. (3d) 322 (C.A.). An interlocutory order disposes of the issue raised, most often a procedural issue, but the litigation proceeds: Hendrickson v. Kallio, 1932 CanLII 123 (ON CA), [1932] O.R. 675 (C.A.), at p. 678.

Also relevant to this analysis is para. 8 of that decision:

As is apparent from the strict requirements for leave to be granted to appeal interlocutory orders, appeals from such orders are intended to be very limited. On the other hand, appeals from final orders are as of right. As a result, the issue of whether an order is final or interlocutory determines not only which court has jurisdiction, but also the extent to which an appeal will lie from the order.”

            Mills v. Thompson, 2022 ONSC 1525 (CanLII) at 10-11

“The Respondent argues that his unequal financial contributions to the Property unjustly enriched the Applicant. He points to payments for a bridge financing loan, closing costs, a larger down payment, mortgage loan installments, property taxes, and home insurance.

The Applicant opposes the Respondent’s claims, asserting entitlement to a fifty percent (50%) legal or beneficial interest in the Property, thereby precluding an unequal trust. She bases her claim on her financial and non-financial contributions to the domestic partnership, which benefited the Respondent. She contends that the Respondent’s financial contributions at the time of purchase were not intended as a gift, considering their long-standing relationship and lifestyle.

As established in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 20 (“Pecore”), a resulting trust is founded on the obligation to return property to the original title holder. This obligation arises when the current title holder acts as a fiduciary or has provided no consideration for the property. While legal title is typically held by the trustee, equitable title may also be held in exceptional circumstances.

There is a rebuttable presumption of resulting trust that generally applies to gratuitous transfers; because equity presumes bargains, not gifts:  Pecore, at para. 24.  However, as noted by Cory, J., this presumption depends on the relationship between the transferor and the transferee.  In certain relationships, such as between spouses or parent and child, the presumption of a resulting trust does not arise.  Instead, there will be a presumption of advancement:  Pecore, at paras. 27-28.

The “judge will commence the inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention”:  Pecore at para.44; Chechui v. Nieman, 2017 ONCA 669, 136 O.R. (3d) 433, at para. 59.

Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269 (“Kerr”), is a leading case regarding trust claims in domestic relationships.  The crucial element in both situations is the “gratuitous” nature of the transaction. The absence of an exchange of value leads the law to presume that a gift was not intended.

The common law of unjust enrichment recognizes that some unmarried domestic arrangements, may justify remedies when one party disproportionately retains assets acquired through joint efforts. Such sharing, however, is not presumed, nor is it presumed that jointly acquired wealth will be equally shared.  Cohabitation alone does not entitle one party to another’s property or other relief. However, where there are joint efforts, demonstrated by the nature of the parties’ relationship and dealings, that led to wealth accumulation, unjust enrichment law should provide a remedy.  It is an equitable remedy. The circumstances of the relationship should be considered, focusing on how they actually lived their lives rather than how they should have lived their lives: Kerr, at paras. 85-87.

Relevant factors to consider in domestic relationships include the parties’ mutual effort, their economic integration, their actual intentions, and their prioritization of the family:  Kerr, at para. 89.

There is no dispute that there was a disproportionate share in the downpayment for the purchase of the Property.  The Applicant paid $50,000 and the Respondent paid $100,000 toward the downpayment.  The Respondent paid the additional expenses relating to the transfer of the Property at the time of purchase.  The Respondent subsequently paid for the mortgage, taxes and insurance.

At the time of the purchase of the Property, however, the evidence does not support that the Respondent’s higher financial contributions to the Property were intended to be a gift.  The conduct of the parties shows that there was an intention that the Property be held jointly with an equal sharing. In this case, it is compelling that the parties were in a long-term domestic relationship by the time they purchased the Property.  As explained in more detail below, they had, and continued, to manage their financial affairs in the same manner prior to purchasing the Property, with the Respondent disproportionately paying for the lifestyle they enjoyed together.

It is undisputed that they regularly sought financial advice together as a couple, engaged in income splitting and other tax planning strategies, including financial planning for retirement.  The parties shared their lives and wealth during their relationship. The Respondent was the higher income earner both before and after retirement.  He holds significant assets, substantially higher than the Applicant.  The Respondent accepts that he paid the “lion’s share” of their expenses throughout.

While the Respondent paid for the Property’s direct expenses, the Applicant contributed to other jointly beneficial expenses and provided domestic services, as well as enhancements to the Property. The Applicant’s contributions included purchasing groceries, home furnishings, managing renovations, performing most of the domestic chores, and jointly caring for the Property and their animals.

This conduct, in my view, supports a finding that the parties operated under shared, perhaps unspoken, understandings or assumptions about their future together, before and after they purchased the Property.”

            Frank v. Martin, 2025 ONSC 1426 (CanLII) at 26-38

“This court has no jurisdiction to hear this appeal. It is an appeal of a final order of a judge of the Family Court made only pursuant to provincial legislation and, as such, must be made to the Divisional Court pursuant to s. 19(1)(a.1) of the Courts of Justice Act.

Where a proceeding is taken before the wrong court, it may be transferred to the proper court: s. 110(1) of the Courts of Justice Act. The decision to transfer is discretionary: Bernard v. Fuhgeh, 2020 ONCA 529, 61 C.P.C. (8th) 231, at para. 15. In deciding whether a transfer is in the interests of justice, the court considers three factors: (1) the merits of the proposed appeal; (2) prejudice that the respondent may suffer as a result of further delay while the appeal is waiting to be heard; and (3) whether the appellant acted promptly after becoming aware that jurisdiction was in dispute.”

Whaling v. Cossarini, 2025 ONCA 173 (CanLII) at 8-9

“Successful self-represented parties are entitled to costs. This preserves courts’ abilities to encourage settlement and discourage inappropriate behaviour. It ensures that the opposing parties do not conduct the litigation from a position of ‘costs immunity.’ In determining costs, the court must continue to consider the objectives in r. 24. But calculating self-represented litigants’ entitlement to costs cannot be approached in the same manner as litigants who retain counsel.  Courts often consider an “applicable hourly rate”, based on the party’s expectations as to the costs they would pay if unsuccessful.  This rate can be informed by the hourly rate of the unsuccessful party’s lawyer, if applicable, and the costs of the successful party would reasonably expect to pay if unsuccessful.  A self-represented litigant’s lost income is another measure that may be considered, though the court must be careful not to equate costs with damages for lost income: see Browne v. Cerasa, 2018 ONSC 2242, at para. 31”.

S.P. v. D.P., 2025 ONCJ 157 (CanLII) at 6

“There is no issue that multiplicity of proceedings should generally be avoided, and all issues should be determined in one trial. However, there are instances where the interests of justice are served by bifurcation of the issues as long as no prejudice is caused to either party.

Section 12(5) of the Family Law Rules provides:

(5) COMBINING AND SPLITTING CASES – if it would be more convenient to hear two or more cases, claims or issues together or to split a case into two or more separate cases, claims or issues, the court may, on motion, order accordingly. O.Reg. 114/99, r. 12(5).

Quigley J. in Simioni v. Simioni, 2009 CanLII 934 (ON SC), [2009] O.J. No. 174, 74 R.F.L. (6th) 202, 2000 CarswellOnt 258 at paras. 15-17 (S.C.J.) provides a helpful analysis of the legal principles with respect to bifurcation. This analysis and framework has been followed in many subsequent decisions such as Grossman v. Grossman, 2014 ONSC 2090, Klasios v. Klasios 2015 ONSC 1173, Schulman v Ganz, 2015 ONSC 3254:

(15) First, it should be accepted as non-controversial that both the Family Law Rules and the inherent jurisdiction of the Court provide ample authority and power to permit cases such as this to be split: Family Law Act, section 2(10); Rule 12(5).  The jurisprudence confirms that this is an authority and power that ought to be exercised if convenient, and if the exercise of the power would be in the interests of justice.  The interests of justice will be served if there are clear time and expense benefits to be gained from the bifurcation and determination of the threshold issue, provided no real or meaningful prejudice is caused to either party: Elcano Acceptance Ltd. et al v. Richmond, Richmond, Stambler & Mills, 1986 CanLII 2591 (ON CA), [1986] O.J. No. 578 (O.C.A.); General Refractory Companies of Canada v. Venturedyne Ltd., [2001] O.J. No. 746 (S.C.J.O.); Royal Bank of Canada v. Kilmer van Nostrand Co., [1994] O.J. No. 1476 (Ont. Ct. Jus.(Gen. Div.)).

(16) Nevertheless, it is equally important to remember that the splitting of a trial effectively denies the fundamental principle that as far as possible, multiplicities of proceedings are to be avoided, and thus the power to split a case should be regarded as one that is narrowly circumscribed and to be exercised in only the clearest of cases – in cases that exhibit the exceptional merit that calls upon the Court to exercise its inherent power: Courts of Justice Act, section 138; Elcano, above; Carriero (Litigation Guardian of) v. Flynn, [2004] O.J. No. 3117 (S.C.J.O.).  In light of this caution, the onus necessarily lies upon the party seeking to bifurcate to satisfy the Court on a balance of probabilities that if granted, severance will result in the “just, expeditious and least expensive determination of the proceeding on its merits”.: Merck & Co. v. Brantford Chemicals Inc., 2004 FC 1400 (CanLII), [2004] F.C.J. No. 1704 (F.C.C.) at para 4.

(17) There are a number of questions the Court should consider in deciding whether the severance of the trial in this instance is just and expeditious. These include whether the issues for the first trial are relatively straightforward and the extent to which the issues proposed for the first trial are interwoven with those that will arise in the second. They include whether a decision from the first trial will likely put an end to the action, significantly narrow remaining issues, or significantly increase the likelihood of settlement. They include the extent to which resources have already been devoted to all issues, the possibility of delay, the advantages or prejudice the parties are likely to experience and whether the severance is sought on consent or over the objections of one or more parties: see General Refractories Co. of Canada, above at para. 16. However, as Himel J. noted there, emphasizing the observations of Wilkins J. in Royal Bank v. Kilmer, above, the focus of these questions on expediency does not displace fairness and justice as the dominant considerations.”

Baillargeon v. Nesbitt, 2025 ONSC 1394 (CanLII) at 32-34

“There are many cases in which courts have found that a child taking a “gap year” before starting post-secondary studies, or a brief hiatus from an educational program, may nonetheless remain a “child of the marriage”: see, for example: Boomhour v. Huskinson, 2008 CanLII 26261 (ON SC), at para. 46; Erb v. Erb, 2003 CanLII 2112 (ON SC), at para. 54; Leonard v. Leonard, 2019 ONSC 4848, at para. 55; Musgrave v. Musgrave, 2013 ONSC 7481, at paras. 38-39.

Other cases have held that a child may require a “modest transition period” after completion of an educational program to search for employment: S.P. v. R.P., 2011 ONCA 336, at para. 32.

Apart from these brief periods, however, and in the absence of “illness or other disability”, courts generally require attendance at school for an adult child to maintain his or her dependant status. Adult children cannot simply choose to remain economically dependant on a parent, they must be “unable” to withdraw from the parent’s charge. Nor can adult children accumulate multiple gap years to forestall their independence.

A parent paying child support for an adult child enrolled in an educational program “is entitled to receive confirmation from the educational institution attended by each child indicating whether that child is enrolled and is attending and whether he is attending on a part or full-time basis and the hours of attendance”: Lampron v. Lampron, 2006 CanLII 16375 (ON SC), at para. 4; Gill v. Gill, 2020 ONSC 1176, at para. 82; Musgrave, at para. 40. The record before me indicates that, notwithstanding frequent requests by the respondent, this information and documentation was not forthcoming from the applicant until after this motion was brought.

The loss of dependent status is not necessarily permanent. Once lost, dependant status may be regained. In Lawless v. Asaro, 2003 CanLII 2164 (ON SC), at para. 12, Fragomeni J. stated:

An adult child who has ceased to be a child of the marriage may regain that status by reason of the pursuit of further education. However, each fact situation must be analyzed carefully and the timelines between the time that the child has ceased to be a child of the marriage and the time when the request is being made to regain the lost status must be considered fully.

See also: Bishop v. McKinney, 2015 ONSC 5565, in which the father’s obligation to pay child support was suspended following the daughter’s graduation from high school, but resumed following her enrollment at university a year and a half later.

Where children have taken a gap year to earn money for post-secondary education, these earning may be taken into consideration when determining a parent’s support obligations, and the adult child may be expected to contribute some of their own income made during the gap year to the costs of post-secondary education: Menegaldo, at para. 174, Leonard, at para. 60; Lewi v. Lewi, 2006 CanLII 15446 (ON CA), at paras. 47 and 141.

In the present case, I am satisfied that both children should be permitted to take a “gap year” in order to “figure out” what they want to do. Both children graduated from high school when they were 17 years of age, and turned 18 the following autumn. It is not unusual for minor children to take a “gap year” before they are ready to attend post-secondary education, and they do not necessarily lose their dependant status as soon as they turn 18 years of age.

An adult child cannot, however, indefinitely postpone the commencement of post-secondary education and expect to remain a dependant, entitled to parental financial support. In the absence of “illness or disability” or some other cause that makes him “unable” to attend school, he no longer qualifies as a “child of the marriage” within the meaning of s. 2(1) of the Divorce Act.

While virtual learning may not be ideal, Matthew’s and Aaron’s decision not to enroll in any educational program for the 2020-2021 academic year was their choice. It was a choice that, as adults, they had every right to make, but it is not a choice that the respondent should be required to pay for.”

            Edwards v. Edwards, 2021 ONSC 1550 (CanLII) at 37-46

“In assessing any decision-making order the court must consider whether the terms of a particular order are:

a)   more or less likely to de-escalate or inflame the parents’ conflict;

b)   more or less likely to expose the child to parental conflict; and,

c)   Whether a parent is seeking the order as a mechanism to inappropriately control the other parent.

A parallel parenting order in which each parent is allocated his or her exclusive sphere of decision-making still requires some ability of the parents to communicate in the face of inevitable gaps in even the most detailed order: Montforts v. Clarke, 2019 ONCA 723.

In V.K. v. T.S. ONSC 4305 (CanLII), Justice Deborah Chappel conducted a thorough review of the case law and set out in paragraph 96 the following factors to consider when determining whether to make a parallel-parenting order:

a)     The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels.

b)     The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c)     Evidence of alienation by one parent.  If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate.

d)    Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e)    The extent to which each parent is able to place the needs of the child above their own needs and interests.  If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.

f)     The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

The court has several options: McBennett v. Danis, 2021 ONSC 3610:

1. 1. 1. 1. 1.   It may grant sole decision-making responsibility in all areas to one spouse.
            2.   It may grant joint decision-making responsibility in all areas to both spouses.
            3.   It may grant joint decision-making responsibility to both spouses in one or more areas of responsibility but give sole decision-making authority in the other areas to one spouse or allocate those other areas of decision-making between the spouses.
            4.  Alternatively, it may allocate each party sole decision-making responsibility in separate specified areas, with no provision for joint decision-making in any areas.
            5.   Another option open to the court is to require the parties to engage in all reasonable efforts to make some or all significant decisions jointly, but to designate which party has final say in each area of decision-making in the event of disagreement.

There is also a sixth option of parallel parenting, assigning responsibility for decisions in certain areas to one parent, with the opportunity for input within a certain time frame.”

          Sinclair v. Quade, 2024 ONSC 1098 (CanLII) at 65-69

“In my view, it was an error for the motion judge to hold that the appellant’s spousal support could not be varied because the Mossip Order did not contain a term permitting variation. While s. 15.2(4)(c) of the Divorce Act provides that the court shall consider “any order, agreement or arrangement relating to the support of either spouse”, this does not end the inquiry required. The appellant’s motion would have been an application under s. 17 of the Divorce Act to vary her spousal support. The Supreme Court in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 stated, at para. 41, “even where an agreement incorporated into an order includes a term providing that it is final, the court’s jurisdiction under s. 17 cannot be ousted”.

While the motion judge was entitled to make a factual finding that the evidence regarding the respondent’s income increase did not support a finding that there was a material change in circumstances, her analysis fails to ask whether the appellant faced a material change in circumstances. The court in L.M.P., at para. 29, is clear that the question of a material change applies to both parties:

In determining whether the conditions for variation exist, the threshold that must be met before a court may vary a prior spousal support order is articulated in s. 17(4.1). A court must consider whether there has been a change in the conditions, means, needs or other circumstances of either former spouse since the making of the spousal support order. [Italics in original; underlining added.]

Therefore, despite the existence of an order incorporating an agreement, a judge retains jurisdiction to consider whether a variation in support should be granted based on whether there has been a material change in the circumstances of either former spouse, and having regard to any existing agreement.”

          Hendriks v. Hendriks, 2022 ONCA 165 (CanLII) at 50-52

“A resulting trust arises when title to property is in one party’s name, but that party, because they are a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner: Pecore v. Pecore, 2007 SCC 17 at para. 20. The presumption of resulting trust is a rebuttable presumption of law: where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended. This is because equity presumes bargains, not gifts: Pecore, at para. 24.

The purchase money resulting trust is a type of gratuitous transfer resulting trust, where a person advances a contribution to the purchase price of property without taking legal title; gratuitous transfer resulting trusts presumptively arise any time a person voluntarily transfers property to an unrelated person or purchases property in another person’s name: Nishi v. Rascal Trucking, 2013 SCC 33 at para. 21. In the context of a purchase money resulting trust, the presumption is that the person who advanced purchase money intended to assume the beneficial interest in the property in proportion to his or her contribution to the purchase price: Nishi, at para. 29.”

            Falsetto v. Falsetto, 2023 ONSC 1351 (CanLII) at 19-20