Author: dawi

The relevant sections of the Divorce Act are ss. 8(1)-8(3) and 15.2(4)(a). These sections deal with the concept of living “separate and apart” in the context of a claim for support, and the “length of time the parties cohabited” in the context of spousal support.

The relevant section of the FLA is s. 4(1) which, in the context of family property, defines “valuation date” as the earliest of five possible dates. In this case, subsection 1 of 4(1) applies, referring to the date the spouses separated and there was no reasonable prospect that they would resume cohabitation.

As stated by the court in Al-Sajee v. Tawfic, 2019 ONSC 3857, at para. 26, ascertaining when parties begin to live separate and apart requires a careful analysis of the unique realities of their relationship, routines, social and other habits, practices and living arrangements over time. In deciding how much weight, if any, to give to any particular factor, the court must carefully assess whether there have been any real changes in regard to that factor since the parties were clearly together in a conjugal relationship. In addition, because of the particular dynamics of each relationship, no one factor will be determinative of whether spouses are living separate and apart; a global analysis and weighing of all factors is required.

In Al-Sajee, the court set out various factors to consider. They are summarized as follows:

1. 1. 1. 1. 1.    To be living separate and apart requires: i) the parties live apart from each other, and ii) there must be an intention on the part of one or both of them to live separate and apart from the other.
            2.    To live “apart” requires a physical separation of the parties. However, they can be living separate and apart under the same roof. The determination of whether parties who reside in the same home are living separate and apart involves a consideration of all relevant factors listed.
            3.    Two residences and significant periods apart in the two residences is not determinative. Parties in these circumstances will only be considered to be living separate and apart if at least one of them intends to end the marital relationship.
            4.    Whether there is a withdrawal by one or both parties from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the matrimonial relationship.
            5.    A meeting of the minds is not required. A physical separation, coupled with the intention of one party to live separate and apart, is sufficient.
            6.    A clear statement or unequivocal act by one of the parties of their desire to terminate the relationship will be very relevant.
            7.    In assessing “intention”, the court must strive to determine the parties’ true intent and not simply their stated intent at the time of hearing.
            8.    A party’s intention to live separate and apart will not necessarily be broken by brief references by that party to the possibility of reconciliation where no serious steps were taken to move towards such a goal.
            9.    The degree to which the parties have been intimate with each other.
            10. Whether the parties have been involved romantically with other people.
            11. Whether the parties have continued to discuss family issues and problems and communicate about daily issues.
            12. Whether there have been any changes in expectations regarding their accountability to each other for daily activities.
            13. The extent and nature of the parties’ contact with each other, including whether they have continued to participate in joint social activities. In assessing any contacts, the court should consider whether the events were evidence of an ongoing relationship or reconciliation or simply “rare moments of friendliness or civility”.
            14. Whether the parties have attended with their children for family events.
            15. Whether the parties have continued to share and participate in each other’s daily routines as in the past, such as eating meals together and sharing household chores.
            16. Whether the parties have celebrated special occasions together and/or vacationed together.
            17. Whether the parties have purchased gifts or exchanged other tokens of affection with each other.
            18. Whether the parties have supported each other with respect to extended family obligations, through difficult times and with each other’s personal issues.
            19. How the parties have referred to each other to third parties.
            20. Documentary evidence respecting their relationship status is also relevant (i.e. Income Tax Returns) as is the receipt of any benefits claimed that are conditional on their relationship status.
            21. Whether the parties have retained or consulted a counsellor or mediator.
            22. Whether there have been any changes in the way the parties manage their financial affairs, including whether they have taken steps to separate their financial dealings.
            23. Whether the parties have continued to share the use of assets.
            24. The parties’ behaviour towards each other in the presence of third parties.
            25. Whether the parties have taken steps to legally terminate their relationship and resolve issues relating to their separation.”

Kim v. Lee, 2025 ONSC 1101 (CanLII) at 5-8

“In the leading case of Pecore v. Pecore, 2007 SCC 17, from the Supreme Court of Canada, the majority decision written by Rothstein, J. held as follows:

[20]A resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner: see D. W. M. Waters, M. R. Gillen and L. D. Smith, eds., Waters’ Law of Trusts in Canada (3rd ed. 2005), at p. 362.  While the trustee almost always has the legal title, in exceptional circumstances it is also possible that the trustee has equitable title: see Waters’ Law of Trusts, at p. 365, noting the case of Carter v. Carter (1969), 1969 CanLII 756 (BC SC), 70 W.W.R. 237 (B.C.S.C.).

[24] The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers.  When a transfer is challenged, the presumption allocates the legal burden of proof.  Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters’ Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110.  This is so because equity presumes bargains, not gifts.

[55] Where a gratuitous transfer is being challenged, the trial judge must begin his or her inquiry by determining the proper presumption to apply and then weigh all the evidence relating to the actual intention of the transferor to determine whether the presumption has been rebutted.

[56] The traditional rule is that evidence adduced to show the intention of the transferor at the time of the transfer “ought to be contemporaneous, or nearly so”, to the transaction … The reason that subsequent acts and declarations have been viewed with mistrust by courts is because a transferor could have changed his or her mind subsequent to the transfer and because donors are not allowed to retract gifts.  As noted by Huband J.A. in Dreger, at para. 33: “Self-serving statements after the event are too easily fabricated in order to bring about a desired result.”

Reshetnikova v. Rawlins, 2025 ONSC 1064 (CanLII) at 219

“This matter came before me for a regular motion and cross-motion, scheduled for one hour on a busy family motions day.  Before I delve into the substantive issues of this matter, I wish to spend time discussing a very important preliminary issue, specifically page limits.  In a recent decision of Edwards RSJ. in Lepp v. The Regional Municipality of York, 2022 ONSC 6978, Edwards RSJ. refused to hear a matter due to the state of the record and its failure to comply with the prevailing Notice to the Profession, effective August 2, 2022 (“the Notice”).  I wish to reinforce Edwards RSJ.’s important message found at para. 17 of his Ruling:

…Very simply put, the Bar needs to reflect on why they are filing materials that are hundreds, if not thousands of pages long. This applies to Motion Records, Caselaw and Pre Trial memos. In the world we now live in, the Bar needs to appreciate that apart from the requirements imposed by the Notice and the Rules of Civil Procedure judges are human beings. We simply do not have the time to read the volume of material we are often confronted with. The Bar would be well advised to read the Notice and The Rules to ensure they have complied with the minimum filing requirements for the hearing of a motion or a pre-trial.

As it relates to family matters and the matter before this court, the Notice sets forth the minimum expectations of the Court in terms of what is to be filed for conferences, motions and hearings.  Under the heading “Restrictions on materials filed” it says,

Focused materials help facilitate a focused hearing.  Unfortunately, many filings include unfocused materials with unnecessarily voluminous attachments.  Litigants are directed to prepare material that is focused and includes only the supplementary documents that are needed to facilitate a resolution of the outstanding issues.

The Notice makes it clear that,

For short or regular motions, each party is restricted to one primary affidavit in support of their position on the motion and cross-motion (if applicable) which shall not exceed 12 pages of narrative.  If a party also intends to rely on an affidavit that has been previously file with the Court, the length of that affidavit is included in the 12 page limit.  This limit does not include third party and reply affidavits, where required, which shall not exceed 5 pages each, or affidavits relating to a party’s financial statement in accordance with Rule 13(12)(b).

Additionally,

[E]xhibits to each party’s affidavit shall be limited to only the necessary and relevant evidence and are generally expected not to exceed 10 pages.  Litigants shall not include voluminous texts, emails and/or social media postings.  Instead, only the relevant and necessary excerpts from these communications should be attached as exhibits.

Lastly, and without exception,

All documents filed for a family conference or motion must be prepared using a font size of no less than 12 point and double spacing.

Leave is required to file material beyond what is permitted above which will only be granted in exceptional circumstances.  For motion materials leave should be sought at the case conference.  Unless approval has been obtained in advance or a Regional Notice permits otherwise, material that is filed in excess of these restrictions will not be reviewed by the presiding judge and may result in an adjournment.

The court’s message to all counsel and self-represented litigants is that they “would be well advised to have a copy of the Notice on their desks at all times”: see Lepp, at para. 4.  Family Court is not only limited to simply adjourning motions that do not comply with the Notice; we may also choose to exercise our authority and apply any other consequences as set out in the Family Law Rules, O. Reg. 114/99 (the “Rules”), including, but not limited to those in rr. 1(8), 1(8.1), 2, 14(21), and 24.   There are many serious consequences for not following the Notice, Court Orders, and the Rules and Practice Directions.”

          Wallwin v. Wallwin, 2023 ONSC 1173 (CanLII) at 1-6

“Grandparents do not have a legal right of contact with their grandchildren. The onus is on the grandparents to show contact is in the children’s best interests.

The starting presumption is that deference should be given to a parent’s decision whether to award a grandparent contact with a child. See: Chapman v. Chapman, 2001 CanLII 24015 (ONCA). It is always important to defer to the decisions of parents regarding their children.  However, deference is only accorded when those decisions are reasonable, and the parents are acting in the child’s bests interests. See: M.M. v. K.M., 2023 ONCJ 314, McLaughlin v. Huehn, 2004 ONCJ 426; Bennett v. MacFarlane, 2021 ONSC 3700; Arbuzova v. Scriver et al, 2024 ONSC 832.

In Giansante v. DiChiara, 2005 CanLII 26446 (ON SC), [2005] O.J. No. 3184 (SCJ), the court reviewed the decision in Chapman, and held that deference should generally be given to a custodial parent’s decision regarding access unless the following three questions are answered in the affirmative:

(1)           Does a positive grandparent-grandchild relationship already exist?

(2)           Does the parent’s decision imperil this relationship?

(3)           Has the parent acted arbitrarily?

In determining if there is a “positive relationship”, the case law notes the following:

(a)     There must generally be substantial pre-existing relationship between relative and child.  Strong loving ties must exist based on time spent with each other.

(b)     That relationship must be constructive one for child in sense that it is worth preserving.  If relations between parties are too poisoned, previously positive relationship may not be capable of preservation.

(c)     This determination must include consideration of child’s age and time since child last saw relative.

(d)     If a young child has lost a parent, the existence of strong pre-existing relationship may not be necessary when it is the relative of the lost parent who applies for access.

See: M.M., Ibid.

The Ontario Court of Appeal in Torabi v. Patterson, 2016 ONCJ 210 and B.F. v. A.N., 2024 ONCA 94 set out that there is now a two-part test to determine contact cases. The three questions posed in Giansante are now the first part of the test to determine if the court will defer to the parent’s wishes.

However, “less deference may be owed when one of the parents ha[s] died, meaning that the child may lose a relationship with the other side of the family. See: Torabi, ibid.

The court in B.F. stated that if the court determines it will not defer to the parent’s wishes, the second part of the test requires a best interests analysis taking into account many factors, including the following:

(1)           The nature and strength of the child’s relationship with the grandparent;

(2)           The history of the child’s care;

(3)           The child’s needs, including special needs;

(4)           the grandparent’s willingness and ability to meet the child’s needs;

(5)           their willingness and ability to co-operate with the child’s parent and other caregivers;

(6)           the child’s cultural, linguistic, and religious upbringing; and

(7)           any criminal proceeding, order, condition or measure relevant to the safety of the child.

In F.S. v. N.J. and T.S., 2024 ONCJ 199, the court considered the date it should determine if a positive grandparent/grandchild already existed. The grandmother had a close relationship with the child while the mother and child lived with her. However, once the mother moved out, the grandmother only saw the child a handful of times. Then the mother cut off the grandmother for a long time before the grandmother started her application for contact.

The court found the appropriate date to determine if there was a positive pre-existing relationship was the date when the mother cut off contact with the grandmother. The court found the relationship was not positive at that time.

This approach was also taken by Justice Andrea Himel in Kirshenblatt v. Kirshenblatt, 2024 ONSC 2896. In Kirshenblatt, Justice Himel also found she could order contact even if the three Giasante questions were not answered in the affirmative.

In Ninkovic v. Utjesinovic, 2019 ONSC 558 Ont. S.C.J., 23 R.F.L. (8th) 172, paragraphs 72-74, inclusive, note the following with respect to the second part of the test:

[72] In considering, at the second stage, whether access to the grandparent is in the best interests of the child, an important consideration is the extent to which this would cause anxiety and stress for the parent, which in turn could have a deleterious impact on the child. For example in Barber v. Mangal, 2009 ONCJ 631, Justice Brownstone found that the intensity of the conflict between the parents and the grandmother seeking access was such that any access would be extremely stressful for the parents and “given their personalities, there is a very real and substantial risk that such stress would be visited upon the child.” See para. 17. At the same time, animosity does not necessarily preclude an access order. See para. 18.

[73] See also MacDonald v. MacDonald, CanLII 15444 in which Justice Pazaratz found that the “level of conflict between the applicant and the respondent is so overwhelming that any future contact will invariably result in the children and their family experiencing more upset, commotion, and grief,” and dismissed the grandmother’s request for access to her daughter’s children.

[74] A further consideration is whether an access order would destabilize the family unit. See Blackburn v. Fortin, 2006 CarswellOnt 3458. In that case, Justice Smith declined to grant access to a grandmother where significant tension existed between the grandmother and mother, the grandmother often imposed unsolicited views on proper child-rearing, and the grandmother had made a heavy-handed attempt to change the parents’ decision regarding schooling. The court found that access could destabilize the family unit.”

A.L.S. v. K.S., 2025 ONCJ 531 (CanLII) at 40-50

“As Justice MacKinnon explained in Dunn v. Shaw, 2021 ONSC 8286 at paras. 20 to 22, deliberate and willful disobedience may be inferred if a party does not take concrete measures to apply normal parental authority to have the child comply with a parenting order. Parents cannot simply leave the decision about participating in parenting time up to the child. Instead, the parent has an obligation to do all they can to require the child to comply with the parenting order. Although the onus of proof beyond a reasonable doubt remains throughout on the moving party to the contempt motion, the other party has both a parenting responsibility and an evidentiary onus in responding to the contempt motion.”

Graham v Desgagne, 2025 ONSC 1115 (CanLII) at 38

“At common law, trial judges have a broad discretion to rectify a mistake on “outcome-determinative matters” in an order. See SS&C Technologies Canada Corp. v The Bank of New York Mellon Corporation, 2024 ONCA 675, at para 69.

After the order is entered, trial judges can only amend the order if “authorized by statute, to correct a drafting slip-up or error in expressing their manifest intention, or if the matter has not been heard on its merits”. See Canadian Broadcasting Corp. v Manitoba, 2021 SCC 33, at para 33.

The Family Law Rules expressly state that a court may change an order for fraud, mistake, or lack of notice. See Family Law Rules, r 25(19). The wording of the rule presumes that the order has been signed and entered. That said, rule shouldn’t be used to empower the court to “revisit, reopen and reargue a case” or allow the court to hear an appeal of its own decision. See NS v RM, 2020 ONSC 3359, at para 38.

Together, I read and understand the caselaw and rule 25(19) to mean as follows:

• • • • • before the order is signed, the trial judge can rectify mistakes on outcome-determinative matters
        • after the order is signed, any judge can change an order if there’s evidence of fraud, a mistake that undermines the order’s “manifest intention”, there was a lack of notice, or the court didn’t deal with an outcome determinative matter that was before the court”

Skrak v Skrak, 2025 ONSC 969 (CanLII) at 8-11

“The essence of unjust enrichment is that “something must have been given by the plaintiff and received and retained by the defendant without juristic reason.” Kerr v. Baranow, 2011 SCC 10, at para. 32. Canadian law permits recovery whenever the plaintiff can establish three elements: (1) an enrichment of or benefit to the defendant; (2) a corresponding deprivation of the plaintiff; and (3) the absence of a juristic reason for the enrichment. Kerr at 33; Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834, at p. 844; Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] 3 S.C.R. 762, at p. 784, [1992] S.C.J. No. 101, at para. 32.

Unjust enrichment is not fault-based. It is “animated by the belief that, regardless of any wrongdoing, unwarranted transfers ought to be reversed.” Mitchell McInnes, The Canadian Law of Unjust Enrichment and Restitution, 2nd Ed. (Toronto: LexisNexis, 2022), at §1.01[2][a][i]. I will cite this text simply as “McInnes”.

Liability for unjust enrichment is strict. “Restitution is triggered, regardless of any wrongdoing, by an unwarranted transfer between the parties.” McInnes, at §1.01[2]. Despite this, parties usually find it irresistible as an element of advocacy to inject an emotional element – wrongdoing – into the analysis, but again, wrongdoing is not required.”

Metske v. Metske, 2023 ONSC 1032 (CanLII) at 121-123

“In Goldman v. Kudeyla, 2011 ONSC 2718, 5 R.F.L. (7^th) 149, McGee J. provides a summary of the law with respect to a judicial Order for the sale of a property prior to trial.  She states at paras. 17, 18 and 19:

A property owner, whether the holder of an exclusive interest or a joint interest has a prima facie right to sale. When the property consists of an interest in a matrimonial home, that prima facie right is subject to any competing interests under the Family Law Act that would otherwise be defeated.

To make a pre-trial order for the sale of a matrimonial home the court must first determine whether the resisting party has established a prima facie case that he or she is entitled to a competing interest under the Family Law Act. If not, then the right to sale prevails. If so, then the motion for sale is denied unless the selling party can demonstrate that the sale would not prejudice the rights of the resisting party.

There have been a number of cases in which the Court has denied an interim motion for sale prior to trial such as Arlow v. Arlow (1990), 1991 CanLII 12940 (ON CA), 33 R.F.L. (3rd) 44 (OCA,) Walters v. Walters, 1992 CanLII 8599 (ON SCDC), [1992] O.J. No. 1564, 1992 CarswellOnt 811 and more recently, Kereluk v. Kereluk, 2004 CanLII 34595, Ontario S.C.J. In each case there were compelling circumstances in which one or both tests favoured the resisting party, such as the availability of trial within a short period, prejudice on the equalization payment, or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause.”

Giotis v. Giotis, 2024 ONSC 863 (CanLII) at 23

“The Ontario Court of Appeal discussed entitlement to spousal support based on non-compensatory grounds where the claimant had health issues in paragraphs 27 and 28 of Gray v. Gray, 2014 ONCA 659 as follows:

[27]      One of the objectives of the Divorce Act is to relieve economic hardship.  Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership.  As stated by this court in Marinangeli v. Marinangeli (2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 at para. 74, in determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses.

[28]      In the case before us, Ms. Gray’s health prevents her from working.  This is relevant to the assessment of her needs.  As stated by the Supreme Court in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, “in some circumstances the law may require that a healthy party continue to support a disabled party, absent contractual or compensatory entitlement. Justice and consideration of fairness may demand no less.” (at para. 48).”

          S.N.S. v. K.N.S., 2023 ONCJ 55 (CanLII) at 45

“The calculation of net family property under the FLA excludes certain assets and properties, including inheritances received after the date of marriage.

Section 4(3) of the FLA provides that the onus of proving an exclusion is on the person claiming it. When excluded property changes form, the party seeking to establish exclusion must demonstrate that the new property originated in the excluded property, and that the claimant maintained ownership of the property: see e.g. Belgiorgio v. Belgiorgio (2000), 1994 CanLII 17076 (MB QB), 10 R.F.L. (4th) 239 (Ont. S.C.), aff’d (2001) 2001 CanLII 32756 (ON CA), 23 R.F.L. (5th) 74 (Ont. C.A.).

As the Court stated in Oliver v. Oliver, 2012 ONSC 718, at para. 96, the standard for proving tracing of inherited funds is a “common sense” approach to determine if there is a sufficient link between funds for which an exclusion is sought to the inheritance.”

            Whiteside v. Govindasamy, 2021 ONSC 789 (CanLII) at 204-206