Month: April 2026

“The appellant did not argue that the OBCA was a juristic reason in the court below. Principles of fairness usually militate against hearing new issues on appeal. The responding party may be at a disadvantage, having not led evidence on the issue in the court below. A related concern is that the record may not be sufficiently robust to permit appellate adjudication. Finally, new arguments on appeal do violence to the principle of finality. The appellate court is not a forum for revisiting tactical decisions that were unsuccessful at trial.

However, like most rules, the rule against new arguments on appeal has exceptions. Exceptions arise where the concerns that animate the rule can be adequately addressed. This is one such case. There is no missing evidence. The appellant has advanced a new theory, but it hinges on the evidence that was adduced in the court below. When asked, the respondent could not identify any additional evidence that she would have led on the issue. Therefore, the respondent is not at any discernable disadvantage, and this court has what it needs to adjudicate the issue on the merits.”

          Chapman v. Ing, 2025 ONCA 292 (CanLII) at 17-18

“It is now trite to say that full disclosure is the lifeblood of family law and that the absence of disclosure is its cancer. However, such statements occasionally need to be repeated.”

          Figaro v. Figaro, 2025 ONSC 2348 (CanLII) at 1

“The appellant raises one legal issue on appeal: she contends that there was no material change in circumstance that would permit the motion judge to revisit the parenting schedule. We disagree. The motion judge found a material change on two bases: 1) that the children were 10 years older than they were at the time of the original order; and 2) that the children had been consistently asking for more time with the respondent. These amount to a material change in circumstance.”

Diaz v. Bol, 2025 ONCA 277 (CanLII) at 5

“When an arbitration agreement provides that an award made under it may be appealed on a question of law, a party dissatisfied with the award may appeal on such a question to the Superior Court of Justice as of right. But when no such appeal is provided for in the arbitration agreement, a party may only appeal an award on a question of law with leave of that court, and only “[i]f the arbitration agreement does not deal with appeals on questions of law”: Arbitration Act, 1991, S.O. 1991, c. 17, ss. 45(1) and (2) (the “Arbitration Act”).

In other words, the Arbitration Act contemplates three different scenarios regarding appeals to the court on questions of law. The arbitration agreement may expressly provide for, be silent on, or preclude such appeals. In the first scenario there is an appeal as of right; in the second, there is an opportunity to appeal but only with leave; and in the third, there is no appeal or right to seek leave to appeal at all.”

Baffinland Iron Mines LP v. Tower-EBC G.P./S.E.N.C., 2023 ONCA 245 (CanLII) at 1-2

“In Virc v. Blair, 2014 ONCA 392, 119 O.R. (3d) 721, the Court of Appeal set out the analysis for examining whether the validity and enforceability of spousal support provisions within a domestic contract raise a genuine issue requiring a trial within the context of a summary judgment motion.

The court directed that the measure is whether the spousal support provisions meet the objectives for spousal support set out under s. 15.2(6) of the Divorce Act:

(a)   recognizes any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b)   apportions between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c)   relieves any economic hardship of the spouses arising from the breakdown of the marriage; and

(d)   insofar as practicable, promotes the economic self-sufficiency of each spouse within a reasonable period of time.

The Court of Appeal in Virc held that in the family law context, the onus of unearthing intentional material misrepresentations in the payor’s financial disclosure is not on the payee spouse.  Rather, the burden is on the payor to demonstrate that the payee spouse had actual knowledge of the misrepresentation and signed the separation agreement notwithstanding that knowledge: “The respondent [payor spouse] could point to no authority for the proposition that the suggested duty of a spouse receiving financial disclosure in a matrimonial case, to investigate or test the veracity of the information provided, overtakes deliberate material non-disclosure by the other spouse”: at para. 58.

Citing Rick v. Bandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, the court affirmed that where a party has deliberately failed to make full and honest disclosure of all relevant financial information, the resulting domestic contract may be “vulnerable to judicial intervention where the result is a negotiated settlement that is at variance from the objectives of the governing legislation”: Virc, at para. 66.  Furthermore, while demonstrating that the recipient spouse had actual knowledge of the inaccurate disclosure is a defence, “a mere suspicion of lack of veracity does not absolve a fraudster of responsibility”: at para. 69.

On the issue of lack of financial disclosure, the court concluded the following, at para. 74:

[T]he court is required to take a holistic approach in determining whether there has been a failure to make disclosure under s. 56(4) of the FLA.  This requires a careful balancing of the circumstances, including those set out in LeVan.  In my view, in this case, that balancing required a detailed analysis of the intentions underlying the parties’ conduct.  That analysis was not possible on this Rule 16 family law summary judgment motion.

The court has followed this analysis within the context of a r. 16 summary judgment framework in many cases.”

Haier v. Haier, 2024 ONSC 2102 (CanLII) at 48-53

“To begin with, it is important to remember that the express purpose of the equalization provisions of the FLA is to address the unjust enrichment that would otherwise arise upon marriage breakdown: s. 5(7) of the FLA. In McNamee, at para. 66, this court stated that, “in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the Family Law Act”: see also Martin, at para. 64.

In McNamee, at para. 66, Blair and Rouleau JJ.A. instructed that the court must first resolve questions of ownership, including beneficial ownership, before it determines each party’s net family property and calculates the equalization payment. It follows that, where a party is claiming a remedial constructive trust, as Kirk claims in the present case, the court is to determine the claim for unjust enrichment (and the appropriate remedy, if any) before determining the claim for equalization: Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at para. 29. Additionally, pursuant to s. 10(1) of the FLA, a person may apply to the court to determine questions of ownership between married spouses, including consideration of any beneficial interests in property arising pursuant to the imposition of a remedial constructive trust.”

          Iredale v. Dougall, 2025 ONCA 266 (CanLII) at 22-23

“Both parties claim exclusions to the values of certain assets in calculating their net family property. The wife claims an exclusion of $133,324.50 and the husband claims an exclusion of $1,419,199.88. Each has the onus of proving their entitlement to the exclusion, in other words “tracing” the value of exclusion. As noted by Perkins J. in Goodyer v. Goodyer, (1999), 1999 CanLII 20759 (ON SCDC), 168 D.L.R. (4^th) 453 (Ont. Gen. Div.):

Tracing is a fault-based concept applied after the fact in family law to a series of transactions that were never wrongful and have not become so by reason of the separation of the spouses. The tracing concept was adopted because the Family Law Act property scheme has a bias in favour of sharing the value of assets in existence at the separation date and a bias against the exclusion of assets from the equalization calculation. Hence the onus on the spouse seeking to exclude assets, and hence the requirement that the spouse seeking to exclude a gift received during the marriage be able to trace it from its original form into assets in existence at the separation.

Tracing is a prospective rather than a retrospective tool; that is, the nature of the transaction by which the asset is acquired determines, at least initially, its exclusionary treatment: Rosenthal v. Rosenthal (1986), 1986 CanLII 6320 (ON SC), 3 R.F.L. (3d) 126 (Ont. H.C.), at para.133. Challenges may arise where, as in this case, the evidence may be unclear about the nature of the transaction giving rise to the asset or where, also as in this case, the asset has changed or been commingled with other assets. Documentary evidence and credibility are critical to the former concern: as for the latter, an exclusion should not be denied if the asset changes form over time. In Ludmer v. Ludmer, 2013 ONSC 784, at paras. 86-87, aff’d 2014 ONCA 827 (except for variation of s. 7 expense calculation). Penny J. observed:

1. 1. 1. 1. 86.    Thus, it is not the transformation of the asset that brings tracing to an end. Rather, it is the inability of the beneficiary to prove the necessary connection or nexus between the trust property and the subsequently acquired asset. For example, tracing may reach its limit when an asset is spent or dissipated or where it is used to pay down debt or otherwise becomes comingled with other assets such that the original trust property can no longer be discerned.

1. 1. 1. 1. 87.      I have found no case which suggests that the excluded nature of property begins to “peter out” merely because it is exchanged for equally identifiable property or through the effluxion of time. Where there is clear documentary evidence of the transformation of an excluded asset into other identifiable property, the exclusion is preserved.

There are three accepted approaches (or methodologies) to tracing, the “first in, first out rule”, the “pro rata” approach” and the “common sense/sufficient link” approach. Of these approaches, the “first in, first out rule”, commonly called the rule in Clayton’s Case”, Devayne v. Noble, 35 E.R. 781, (1816) 1 Mer. 572, is generally disfavoured as being arbitrary and unfair and has been either rejected or narrowed in favour of a more flexible and equitable approach. In Goodyer Perkins J. accepted the “pro rata” approach as more sensible and just in family law cases. That case involved a claim by the husband to exclude several assets from his net family property, including part of a joint investment account set up and totally funded by his late father. After his father died, the husband deposited the funds into a joint account with his wife. Perkins J. pro-rated the value of the exclusion to account for the subsequent transactional changes in the account. In Farmer v. Farmer, 2021 ONSC 5913, at paras 71-73, Finlayson J. described the tracing approach adopted by Metivier J. in Bennett v. Bennett (1997), 1997 CanLII 12388 (ON SC), 34 R.F.L. (4^th) 290 (Ont. Gen. Div.), aff’d 1999 CanLII 2583 (ON CA), [1999] O.J. No. 2631 (Ont.C.A.) as reflecting the “common sense” or “sufficient link” approach.  In Bennett the husband had inherited some money from his mother but apart from the proximity in time between funds being withdrawn from the account holding the inherited funds and the later purchase of a property there was no evidence where the funds went between their advancement and the purchase date. In granting the exclusion, Metivier J. applied what he described was a “common sense and reasonable view” to how the property could have been acquired but for the inheritance. In Henderson v. Casson, 2014 ONSC 720, 42 R.F.L. (7^th) 357, at para. 91, the proximity in time between inherited money and a loan was sufficient to prove the exclusion of the loan.

The choice of tracing approach is discretionary and driven by the evidence: Farmer, at para. 81. The application of any approach, with or without combining elements of the other approaches, will depend on several factors such as the nature of a presumptively excluded asset, whether it changed form and value over time or was commingled with other non-excluded assets. Documentary evidence may be absent or inconclusive resulting in a “but for” linkage based on proximity in time or the history and continuity of the asset’s ownership for which viva voce evidence and the claimant’s credibility are critical. The list is not exhaustive.  A flexible but principled and non-formulistic, equitable approach is warranted. In this case, all three approaches are engaged.”

          Najm v. Najm, 2024 ONSC 2053 (CanLII) at 55-58

“Mr. Elkind argues that the phrase “are the parents of a child” in s. 29 of the FLA should be interpreted to mean “are the parents of a child on the date of separation.” He argues that because Noa died before the date of separation, they do not meet the definition of spouse. Mr. Elkind also argues that spousal support is intended to address the economic needs of a parent with ongoing responsibility for raising a child and because Ms. Addeo does not have ongoing responsibilities for their daughter, she should not be considered a spouse. I disagree. In my view, Mr. Elkind’s proposed interpretation is inconsistent with both the language and purpose of s. 29 of the FLA.

When interpreting s. 29 of the FLA, I must consider the words of provision “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Montreal (Ville) v. 2952-1366 Québec Inc., 2005 SCC 62 at paras. 9-12; Rizzo & Rizzo Shoes Ltd., Re, 1998 CanLII 837 (SCC), [1998] 1 SCR 27 at para. 21.

Looking first at the language of the definition of spouse in s. 29 of the FLA, it does not limit the definition of spouse to couples who have a child together on the date of separation. It defines people who cohabited “in a relationship of some permanence, if they are the parents of a child” as spouses. It does not say “if they are the parents of a child on the date of separation.” If the Legislature intended to limit the definition of spouse in that way, it would have done so explicitly.

The purpose of the FLA as a whole and the purpose of the support provisions specifically also support an interpretation of s. 29 that includes in the definition of spouse two people who have a child together while cohabiting, regardless of whether the child is alive on the date of separation.”

Addeo v. Elkind, 2022 ONSC 2173 (CanLII) at 15-18

“The parties submit that there is a live question as to our jurisdiction to hear this appeal pursuant to the Courts of Justice Act, R.S.O. 1990, c C.43.  The relevant provision is found s. 19(1) of the CJA:

Divisional Court jurisdiction

19 (1) An appeal lies to the Divisional Court from,

(a)  a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2);

(a.1)  a final order of a judge of the Family Court made only under a provision of an Act or regulation of Ontario;

…

The recognition that judges of the Family Court have jurisdiction over a broad range of statutory proceedings, both federal and provincial, provides some context for the appeal route to the Divisional Court found in s. 19(1)(a.1). The thrust of those provisions leads us to conclude that the Legislature intended to exclude final orders of the judges of the Family Court under federal legislation from the jurisdiction of the Divisional Court on appeal, leaving appeals from final orders made under provincial legislation (including orders addressing claims for equitable relief referred to in the CJA) within the Divisional Court’s jurisdiction: see C.C. v. J.B., 2021 ONSC 2174 (Div. Ct.). The excluded matters would be heard by the Court of Appeal for Ontario by virtue of s. 6 (1)(b) (i) of the CJA, which provides as follows:

Court of Appeal jurisdiction

6(1) An appeal lies to the Court of Appeal from,

 …

             (b)  a final order of a judge of the Superior Court of Justice, except,

                      (i)  an order referred to in clause 19 (1) (a) or (a.1),”

          Soleimani v. Karimi, 2023 ONSC 2109 (CanLII) at 22 & 33

“I agree with Justice Madsen (as Her Honour then was) that “the weight of the law appears to be in favour of granting an extension of time to file an Answer…” (paragraph 19 in Wilkinson, supra), but I also agree with Justice Faieta’s remarks in the case of A.B. v. C.D., 2022 ONSC 4933, at paragraphs 27-30: the deadline for filing an Answer is not to be treated as merely a guideline, nor should a failure to abide by that deadline be treated as a mere technicality.  As with most things in our justice system, it all depends on the unique circumstances of each case.”

          M.F. v. S.B., 2025 ONSC 2103 (CanLII) at 14