Month: March 2026

“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