Author: dawi

“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

“There are two schools of thought regarding the role of offers to settle in the determination of success under r. 24. On the one hand, in Lawson v. Lawson, 2008 CanLII 23496 (ON SC), [2008] O.J. No. 1978 (S.C.J.), Justice J. Wilma Scott wrote that any determination of success “…must take into account how that order compares to any settlement offers made”: at para. 7. In Osmar v. Osmar, 2000 CanLII 20380 (ON SC), [2000] O.J. No. 2504 (S.C.J.), at para. 7, Aston J. was even more direct, in stating that:

Offers to settle become the yardstick by which to measure “success” and are significant in considering both liability for costs and the amount of those costs.

On the other hand, in Jackson v. Mayerle, Pazaratz J. considered offers to settle separately from the issue of relative success. His four factors do not include success in comparison to offers to settle. Similarly, Chappel J.’s analysis of divided success in Thompson v. Drummond did not consider offers to settle. Rather, elsewhere in her decision, she describes offers as “[a]nother important consideration in determining both entitlement to and the quantum of costs.”

In my view, offers to settle are imported into r. 24 only about reasonableness and/or proportionality, not success. Further, while those offers need to be in writing, they do not have to meet the formal requirements of r. 18 in order to be considered under r. 24(12).”

Nugent v. Nugent, 2025 ONSC 797 (CanLII) at 16-18

“As mentioned, most family court decisions related to the pandemic, at least to this point, have deferred to the government recommendation that people, including children, get vaccinated against COVID-19. These decisions have been made in relation to decision-making, parenting time, travel, and education. In Chase v. Chase, 2020 ONSC 5083, 151 O.R. (3d) 422, Zinati v. Spence, 2020 ONSC 5231 and A.C. v. L.L., 2021 ONSC 6530 – all decided at a time when the Ontario government deemed in-person classes safe – the court held that the parent who did not want a child to attend was required to explain why, and to offer evidence in support. In a travel context – when the federal government recommended against unnecessary travel – courts have consistently held that the party seeking to travel with the child had the onus to establish that it was necessary: Yohannes v. Boni, 2020 ONSC 4756; Gillespie v. Jones, 2020 ONSC 2558.

Courts have also found that parents must, as a condition to exercising parenting time, abide by government guidelines designed to slow the spread of COVID-19, and that the failure to do so will have consequences: A.T. v. V.S., 2020 ONSC 4198.

In Dyquiango, the court held that vaccination itself was in the child’s best interests (absent compelling reasons to the contrary), which placed the burden squarely on the objecting parent and not the one defending a public health measure.

While the motion judge acknowledges many of these decisions, he clearly viewed them as neither binding nor persuasive. While he was not obliged to adopt the reasoning in a court of coordinate jurisdiction, it was important for the motion judge to cogently explain why he was departing from decisions that had already addressed health-related parenting decisions in this same context.

Instead of the cases listed above, the motion judge relied on the case of R.S.P. v. H.L.C., 2021 ONSC 8362. The court in that case, in a passage relied on by the motion judge, noted, at para. 58, that “[j]udicial notice cannot be taken of expert opinion evidence”, citing R. v. Find, 2001 SCC 32 (CanLII), 2001 S.C.C. 32, [2001] 1 S.C.R. 863, at para. 49.

In my view, this statement, while generally accurate, is inapposite in this case, where the “expert opinion” in question is the approval of medical treatment by Health Canada, the national body tasked with determining that treatment’s safety and effectiveness. In O.M.S v. E.J.S., 2023 SKCA 8, the Saskatchewan Court of Appeal, at para. 48, writes that:

[I]n a family dispute, it is both unnecessary and, in most cases, unhelpful, for the parties and court to look for more than the approval of a drug, such as the Pfizer vaccine, together with any medical advice that may reasonably be required as to the risks and benefits to the child at issue, as the basis to conclude that it is in the child’s best interests to administer the drug. It is unnecessary because a parent is not obliged to prove, and a court is not obliged to consider or decide, that an approved drug is safe or efficacious when used in accordance with and to the extent specified in the approval – just as they need not consider whether medical advice from the family doctor meets that mark. In most cases at least, additional evidence is unhelpful because, absent sufficient evidence to the contrary, parents and courts are entitled to decide that a child should be treated with approved medications in accordance with the approval, subject, of course, to any child-specific medical concerns that may be in play, or other relevant factors.

Recall the two primary rationales for the public documents exception to the hearsay rule: the impracticality of traditional modes of proof, and the expectation that public servants perform their duties with a degree of diligence and care. It is not the subject of dispute among reasonable people that Health Canada has, in the area of safety and efficacy of medical treatment, “special knowledge … going beyond that of the trier of fact”: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 243. Requiring that opinion to be tendered viva voce in every case via live, human experts would be – especially in family court – unnecessarily burdensome.

Stated otherwise, judicial notice should be taken of regulatory approval, and regulatory approval is a strong indicator of safety and effectiveness. That being the case, where one party seeks to have a child treated by a Health Canada-approved medication, the onus is on the objecting party to show why the child should not receive that medication. The motion judge erred by reversing that onus.

The respondent, as the parent seeking not to have the children vaccinated, had the onus to establish that, despite Health Canada’s opinion as to the vaccine’s safety and effectiveness, they should not be. That onus was not satisfied.”

          J.N. v. C.G., 2023 ONCA 77 (CanLII) at 38-46

“The Trial Judge found that “the parties both agreed to raise their family in Canada making many important decisions and personal sacrifices in furtherance of this plan.” Notwithstanding this finding, the trial judge dismissed the claim for compensatory spousal support because (a) at the time of the marriage, both parties were employed on a full-time basis earning similar incomes, (b) the Appellant did not meaningfully contribute to the Respondent’s MBA and there is no evidence that her degree impacted appreciably on her career or that any contributions he did make diminished his earning capacity, (c) although the Appellant was out of the workforce for a number of years, he used this time to further his education and did not primarily care for the children or perform household tasks beyond grocery shopping, (d) the Respondent did not demand that the Appellant leave his job in Saudi Arabia and join her in Canada, and (e) the trial judge did not accept the Appellant’s evidence as to why he was unable to find employment or did not complete the required third level of his CPA course of study.

The reasons given at (a) to (d) are not a sufficient basis in law to dismiss a claim for compensatory support because they inform the narrative of the relationship, not the economic consequences to the spouses upon its dissolution.  The reasons do not consider the overall objectives of an award for spousal support or the compensatory basis for spousal support that is incorporated within the SSAG “with child support” formula, as explained in chapter eight of the SSAG Revised User Guide.

As Justice McLachlin (as she then was) specifically explained in her concurring reasons in Moge at paragraph 119,

A formalistic view of causation can work injustice in the context of s. [15.2(6) and] 17(7) [of the Divorce Act], as elsewhere. The question under [s. 15.2(6)(a) and] s. 17(7)(a) is whether a party was disadvantaged or gained advantages from the marriage, as a matter of fact; under [s. 15.2(6)(c) and] s.17(7)(c) whether the marriage breakdown in fact led to economic hardship for one of the spouses. Hypothetical arguments after the fact about different choices people could have made which might have produced different results are irrelevant unless the parties acted unreasonably or unfairly. In this case, for example, Mrs. Moge in keeping with the prevailing social expectation of the times, accepted primary responsibility for the home and the children and confined her extra activities to supplementing the family income rather than to getting a better education or to furthering her career. That was the actual domestic arrangement which prevailed. What Mrs. Moge might have done in a different arrangement with different social and domestic expectations is irrelevant.

The trial judge may have been led into error by the Respondent’s focus on the parties’ choices during the marriage, specifically, whether the Appellant should bear the consequences of having chosen to immigrate to Canada.

A claim for spousal support is not a claim in tort. Using a “but for” analysis to assess compensatory support claims is inconsistent with the Supreme Court’s determination in Moge that, when dealing with spousal support claims, the court must consider what actually happened in the relationship, and not what might have happened had the spouses made different choices.

The goal of compensatory support is to ensure that the post separation economic consequences of the roles adopted by spouses during a relationship are not disproportionately borne by one spouse alone, but instead, are shared equitably.

Nor is reason (e) – alone or balanced with the other reasons – a sufficient basis to dismiss a claim for compensatory support. The remedy for not accepting the Appellant’s explanations as to why he was unemployed or had not completed his CFA designation is to impute his income for support purposes in the same manner as income is imputed for child support purposes under s. 19(1)(a) of the Federal Child Support Guidelines: see Perino v. Perino 2007 CanLII 46919 (ON SC), [2007] O.J. No. 4298 (SCJ). That is, the remedy is to impute income to the Appellant on a finding that he was intentionally unemployed, or underemployed.

The error in dismissing the claim for compensatory spousal support resulted in the SSAG range not reflecting the Respondent’s post separation increases in income. Instead of using the findings of the Respondent’s income from 2017 to 2022, the trial judge used only the Respondent’s 2016 income of $83,000 and the Appellant’s imputed income of $25,000.

The error was then compounded by the limited duration of support. The result was that the Appellant, with one child in his primary care from 2017 to 2021, received only set off child support and no spousal support to balance the parents’ net disposable incomes.”

          Abdelsamie v. Farid, 2024 ONSC 694 (CanLII) at 29-37

“Temporary Orders establish or maintain a reasonable state of affairs pending Trial, when a full record will be available to the Court.

Courts are generally reluctant to change temporary Orders unless there are compelling circumstances for a change prior to Trial. This is particularly so with respect to parenting Orders given a broad consensus in the research that stable, “good enough” routines for children better meet their developmental needs for predictability and security than a serial schedule subject to the vicissitudes of the next litigation event.

At the same time, a Court is never powerless to act when a child is at risk, or when there are compelling reasons to do so in a child’s best interests.

When a compelling case for a change is established, the legal test(s) to be applied remains the same as was applied in the earlier motion. There is no requirement to show a material change in circumstances affecting the children, per Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, because the Application in which the change to a temporary Order is sought remains one of first instance.

I agree with Justice Mackinnon who stated at para. 23 of J.D. v. N.D., 2020 ONSC 7965, 50 R.F.L. (8th) 62, that in fact, there can be a good reason to lower the threshold for varying an interim parenting Order prior to Trial:

[23] In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and/or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial. A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents.”

          Balogh v. Balogh, 2025 ONSC 815 (CanLII) at 41-45

“An important function of the court is to ensure that the trial procedure is fair and balanced so that parties are able to fairly advance their positions and obtain a judgment based on the merits of the case.  It is not appropriate for a trial judge to simply swear in the witness and sit back and listen.  However, it is equally important that the trial judge maintain a neutral and impartial stance, both in appearance and actuality: Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at paras. 149-51.  There is sometimes a fine line between ensuring that the key evidence is before the case and constructing the case.  I was alert to not crossing that line.  It is ultimately up to the parties to determine what positions they will take and how they wish to advance those positions.

The Court of Appeal has emphasized this role in the context of trials where one or more litigant is self represented.  The trial judge is the gatekeeper and controls the court process.

The court is instructed by the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons, 2006 (the “Principles”).  The Principles provide guidance to trial judges, and also explain the duties of self-represented litigants to become familiar with the legal process with which they are engaged, to prepare their own case, and to be respectful.  The Supreme Court of Canada in its decision, Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4, endorses the Principles.

I adopted the following guidelines in presiding over this trial:

(a)    Explained the process and handed out a document entitled “Ontario Superior Court of Justice:  Overview of the Trial Process” (marked as Exhibit A);

(b)   Inquired as to whether both parties understood the process and procedure;

(c)   Provided information about the law and evidentiary requirements (including providing excerpts from the Divorce Act (marked as Exhibit M)), and invited the parties to read specific leading cases relevant to the issues that they wished me to rule on while emphasizing that they should research and rely on any other caselaw they felt relevant to their respective positions;

(d)   Questioned the Father and Mother once they had provided their evidence in chief to ensure that key documents were tendered by way of exhibits, and to ensure, in a neutral and impartial way, that the parties provided their basic positions concerning each of the issues advanced in their viva voce evidence.  The parties were each cross-examined after I concluded my questioning: Principles, B.4; Cicciarella v. Cicciarella (2009), 2009 CanLII 34988 (ON SCDC), 252 O.A.C. 156 (Ont. Div. Ct.), at paras. 35-45;

(e)   The parties were provided the weekend to prepare their respective closing submissions after receiving further direction from me.”

          Elyasian v. Elyasian, 2024 ONSC 623 (CanLII) at 25-28

“As stated by Justice Gordon in Bousfield v Bousfield, 2016 ONSC 3145 (CanLII), at para. 15:

                   Disclosure

(a) each party is required to serve a financial statement and make full and frank financial disclosure (Rule 13, Family Law Rules, and section 21, Child Support Guidelines);

(b) the onus is on the support payor to accurately disclose his income, not on the support recipient to obtain the relevant information;

(c) the failure to provide disclosure may lead to severe sanctions; and

(d) the court may draw an adverse inference against a party who has failed to comply with the obligation to provide disclosure and may impute income to him as considered appropriate (Section 23, Child Support Guidelines).

In the case of Brown v. Silvera, 2009 ABQB 523, Justice Moen dealt with the requirements for full and accurate disclosure in circumstances where parties were attempting to negotiate a separation agreement for their property. In my view her comments apply equally to parties trying to assess their position within litigation in order to obtain the proper level of child support. Moen J. stated at para. 41:

I adopt the reasoning of Justice Erb in Fercho v. Dos Santos, at paras. 40 and 45. She held that parties to a separation agreement are not expected to engage in a “scavenger hunt”, to unweave “a complex web of corporate or other intrigue” or to “make huge expenditures to untangle complex corporate structures” just to ascertain family assets. Justice Erb stated that behaviour of concealing assets is not to be encouraged. I agree.

When making a determination of what income is available for child support, the court must consider all of the factors set out in the Child Support Guidelines, O Reg 391/97. The starting point is the Objectives set out in s.1:

1. 1. 1. 1. 1.     The objectives of this Regulation are,

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;

(b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective;

(c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.

The objectives of the Guidelines must guide the court’s interpretation of all remaining sections. The emphasis must be on establishing a fair standard of support which ensures that children benefit from the “financial means of their parents.”

In addition to the above comments I draw the parties’ attention to the following:

a.   Timely, accurate and complete disclosure is the foundation of family law.

b.   The Family Law Rulesmake it clear that cases must proceed in a manner that promotes the primary objective of the Rules and that is to enable cases to court to deal with cases justly.

c.   It is the duty of the Court to promote the primary object and the parties and their lawyers are required to help the court to promote the primary objective.

d.   Financial Statements must fully and accurately disclosure of a party’s financial situation and attach any documents to prove the party’s income that the financial statement requires.”

            Green v. Whyte, 2019 ONSC 323 (CanLII) at 5-9