Author: dawi

“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

“The court must be mindful that an interim order can often have long-term implications for the child and the outcome of the litigation. F.B. v. C.H. 2021 ONCJ 275 (OCJ); Coe v. Tope, 2014 ONSC 4002 (SCJ).  As a result, the existence of a status quo – and its manner of creation – are often the subject of significant controversy at the motion stage.

a.    The status quo may be established by reference to the parents’ practice or the child’s routine prior to separation; by any consensual arrangement made after separation; or by court order. Brady v. Fitzpatrick 2022 ONSC 2380 (SCJ); Gray v. Canonico, 2020 ONSC 5885 (SCJ); Falarz v. Gullusci 2023 ONSC 2644 (SCJ)

b.    If a motion is brought immediately after separation, the court will need to determine parenting roles and the child’s routine while the parties were together, with emphasis on more recent patterns.  If a time-sharing arrangement has emerged on a consensual basis since the date of separation – and if it is meeting the child’s needs – the court will be reluctant to change an arrangement which the child has become used to.  But if only a short amount of time has elapsed between the creation of a new status quo and the hearing of the motion, the court will be more inclined to presume that restoration of a previous successful status quo is appropriate. Kennedy v. Hull2005 ONCJ 275 (OCJ); M.H.S. v. M.R. 2021 ONCJ 665 (OCJ).

Because of the obvious importance of the status quo as a best interests consideration, courts must be mindful of – and actively discourage – efforts by parents to unilaterally create a new status quo through manipulation, exaggeration or deception. Izyuk v. Bilousov, 2011 ONSC 6451 (SCJ); Coe v. Tope, 2014 ONSC 4002 (SCJ).

a.    The status quo does not refer to a situation unreasonably created by one party after separation to obtain a tactical advantage in the litigation.  Cabral v. Parker2021 ONSC 4574 (SCJ); Theriault v. Ford, 2022 ONSC 3619 (SCJ)  Neither parent has the right to suddenly impose major changes in a child’s life, or to unilaterally interfere with or impede the other parent’s contact or role in the child’s life. A parent cannot be permitted to gain a litigation advantage through manipulation of events, or by creating a new arrangement which they may later characterize as the “status quo.” Rifai v. Green 2014 ONSC 1377 (SCJ); Ivory v. Ivory 2021 ONSC 5475 (SCJ); J.F.R. v. K.L.L. 2022 ONSC 5067 (SCJ); Wang v. Tang, 2023 ONSC 3609 (SCJ).

b.    Parents cannot resort to self-help remedies; ignore obligations under agreements or orders; present a fait accomplito the court on an interim basis; and expect the court to approve. That is a recipe for chaos, and disaster, and is unfair to children caught in the middle. Sain v Shahbazi, 2023 ONSC 5187 (SCJ)

c.    Self-help is to be discouraged, and certainly not rewarded.  A parent who engages in self-help tactics for strategic purposes — despite the best interests of the child — will generally raise serious questions about their own parenting skills and judgment.  Southorn v. Ree, 2019 ONSC 1298 (SCJ); McPhail v. McPhail, 2018 ONSC 735 (SCJ); C.C. v. I.C., 2021 ONSC 6471 (SCJ); Rifai v. Green,2014 ONSC 1377 (SCJ); M.H.S. v. M.R. 2021 ONCJ 665 (OCJ).

d.    Neither parent has the right to create a unilateral parenting status quo, even if there is an alleged safety issue. Gray v. Canonico, 2020 ONSC 5885 (SCJ); Ivory v. Ivory 2021 ONSC 5475 (SCJ); Ibitoye v. Ibitoye 2023 ONSC 2008 (SCJ)

e.    It is inappropriate for a parent to make secret plans which will have significant impact on children and parenting arrangements, and then announce those plans after decisions have been implemented.  Canning v. Davis-Hall, 2019 ONCJ 971 (OCJ); Doan v. Tran, 2022 ONCJ 419 (OCJ)

f.      Parents take unilateral action at their own peril.  The court will not sanction self-help in circumstances where the best interests of children may potentially be jeopardized.  Corrective action by the court may be swift and firm – with long-term consequences quite the opposite of what the offending parent hoped to achieve.  Fallis v. Decker, 2013 ONSC 5206(SCJ).

Churchill v. Elliot and Ward, 2024 ONSC 1907 (CanLII) at 37-38

“In Rifai v. Green, 2014 ONSC 1377, Pazaratz J. decried self-help parenting measures. He pointed out that one parent does not start out with higher status than the other:

25  The starting point, of course, is that at the outset both parents are presumed to have equal status, equal rights, and equal authority over decisions in a child’s life. In the absence of a formal agreement or court order, neither parent has the right to unilaterally impose major changes in a child’s life. Neither parent has the right to unilaterally interfere with or impede the other parent’s contact or role in the child’s life.

He described the parent who engages in self-help tactics that belie a child’s best interests as raising questions about the new status quo and the moving parents’ own parenting skills, writing:

22  A parent who engages in self-help tactics despite the best interests of the child will generally raise serious questions about their own parenting skills and judgment. In many cases, courts conclude manipulative, selfish or spiteful parents simply can’t be entrusted with custodial authority they would likely abuse. Izyuk v. Bilousov (supra); Clement v. Clement 2010 ONSC 1113 (SCJ).

Fallis v. Decker, 2013 ONSC 5206 is another case in which Pazaratz J. considered the tactic of mobility self-help. In that case, the mother moved and then came to court arguing a new status quo. Pazaratz J. would have none of that argument. He described her tactics as “brinksmanship”. He asserted at para. 27 that “[p]arents take unilateral action at their own peril. The court simply cannot sanction self-help in circumstances where the best interests of children may potentially have been jeopardized.” He added that “[p]articularly at an early stage of litigation, the court should be reluctant to allow any disruption of the status quo.”

In Arbitman v. Lee, 2021 ONSC 315, Monahan J. took a similar approach to the problem of self-help, even when confronted with that behaviour from a primary caregiver. He wrote of the need to discourage that kind of behaviour as follows:

39  First, the current arrangements whereby the Applicant’s time with the children has been severely restricted is purely de facto rather than de jure, resulting from unilateral actions taken by the Respondent rather than as a result of a court order. Self-help measures are to be discouraged, and resort to the courts for permission is indicated where a parent’s right of access to children is to be restricted. If the current restrictions on the Applicant’s access to the children were to serve as a benchmark or starting point for determining the parenting schedule going forward, the effect would be to reward rather than discourage the Respondent’s resort to self-help.

Here, the mother attempted to unilaterally create her own new status quo, brazenly asserting that her unilateral right to remove the child was “non-negotiable”. She may have done better by making it negotiable.”

            Phillips v. Phillips, 2021 ONSC 2480 (CanLII) at 61-65

“I start my analysis by observing that subsection 2(1)(b) of the Divorce Act states that a “child of the marriage” means a child of two spouses or former spouses who, at the material time,

is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

In Licata v. Shure, 2022 ONCA 270 at para. 33 the Court of Appeal stated:

When a parent claims child support for a child who is at the age of majority or older, that parent has the onus of proving that the child remains under parental charge. This onus can be satisfied by identifying circumstances such as, for example, the child being enrolled in higher education. [Citations omitted]

In Licata, the Court of Appeal also referenced the Farden factors, which assist in determining whether an individual is a “child of the marriage”: Farden v. Farden, 1993 CanLII 2570 (BCSC), 1993 CarswellBC 619,  at para. 15.

The Farden factors are:

(1)               whether the child is in fact enrolled in a course of studies and whether it is a full time or part time course of studies;

(2)               whether or not the child has applied for, or is eligible for, student loans or other financial assistance;

(3)               the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;

(4)               the ability of the child to contribute to his own support through part-time employment;

(5)               the age of the child;

(6)               the child’s past academic performance, whether the child is demonstrating success in the chosen course of studies;

(7)               what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;

(8)               at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.

For the reasons that follow, based on the Farden factors and related jurisprudence, I find that Natalie continued to be a child of the marriage past April 1, 2022 and until she completes the second year of her M.Ed. degree in August 2023.

In Makdissi v. Masson, 2017 ONSC 6498, at para. 25, the court stated:

The operative words here are “under their charge” and “unable by reason of … other cause to withdraw from their charge”. In short the parent seeking child support must be supporting the child and it must be reasonable for him or her to do so because the child is not able to support him or herself. It is well established that attendance at post-secondary education will satisfy this test but it is rare for the court to find that the obligation to pay support continues once the child has earned two post-secondary degrees. The question however is not whether there is a magical bright line cut-off after one or two university degrees. There is not. The question is whether the parent seeking support remains financially responsible for the adult child and whether or not that is reasonable under all of the circumstances. The key consideration is dependency. [Footnotes omitted.]”

            Fielding v. Fielding, 2023 ONSC 1819 (CanLII) at 55-60

“It has long been the law in Ontario that a person in the shoes of the Applicant has an onus to demonstrate that she is likely to receive an equalization payment that has some relation to the value of the assets that are the subject of the preservation order being sought. Lasch v. Lasch, 1988 CanLII 4581 (ON SC), [1988] O.J. No. 488 (Ont. H.C.J.).”

Al-Fatal v. Al-Fatal, 2023 ONSC 2047 (CanLII) at 4

“An application judge’s discretion with respect to the granting or refusing of an adjournment is broad, and appellate courts should be reluctant to intervene: Graham v. Vandersloot, 2012 ONCA 60, 180 O.R. (3d) 641, at para. 5. In declining to grant an adjournment, a judge may rely on a range of factors, including a lack of compliance with prior court orders, previous adjournments that have been granted, previous peremptory hearing dates, the desirability of having the matter decided and a finding that an applicant is seeking to manipulate the system by “orchestrating delay”: see The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, 96 O.R. (3d) 138, at para. 37. In Igbinosun, Weiler J.A. added an important caveat, that denying an adjournment solely because a hearing has been designated peremptory may not be appropriate; at para. 43. See also Conway (Re), 2016 ONCA 918, at para. 24.”

            Ross v. Luypaert, 2025 ONCA 236 (CanLII) at 22