Category: Uncategorized

“Section 25 of the Ontario Evidence Act states:

Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof and other public documents purporting to be printed by or under the authority of the Parliament of the United Kingdom, or the Imperial Government or by or under the authority of the government or of any legislative body of any dominion, commonwealth, state, province, colony, territory or possession within the Queen’s dominions, shall be admitted in evidence to prove the contents thereof.

In Levac v. James, 2016 ONSC 7727, at paras. 112-113, rev’d on other grounds, 2017 ONCA 842, the court described the rationale behind the public documents exception to the hearsay rule as follows:

Under the public documents exception, the records and reports of public officials are admissible for the truth of their contents because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove the records and reports: R. v. P.(A.), [1996] O.J. No. 2986 (C.A.). In R. v. P. (A.), supra, Justice Laskin stated at para. 14:

At common law statements made in public documents are admissible as an exception to the rule against hearsay evidence. This exception is “founded upon the belief that public officers will perform their tasks properly, carefully, and honestly.” Sopinka et al. The Law of Evidence in Canada, 2nd ed. p. 231. Public documents are admissible without proof because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove them. Rand, J. commented on the rationale for the public documents exception to the hearsay rule in Finestone v. The Queen (1953), 1953 CanLII 81 (SCC), 107 C.C.C. 93 at 95 (S.C.C.):

The grounds for this exception to the hearsay rule are the convenience of the ordinary modes of proof and, the trustworthiness of the entry arising from the duty, and that they apply much more forcefully in the complex governmental functions of today is beyond controversy.

As noted by Justice Laskin, the rationale for the exception to the rule against hearsay was explained by Justice Rand in R. v. Finestone, 1953 CanLII 81 (SCC), [1953] 2 S.C.R. 107, where Justice Rand adopted what was said centuries earlier in the English case of R v. Aickles (1785), 1 Leach Cr. L. 390 at p. 392:

The law reposes such a confidence in public officers that it presumes they will discharge their several trusts with accuracy and fidelity; and therefore whatever acts they do in discharge of their public duty may be given in evidence and shall be taken to be true, under such a degree of caution as the nature and circumstances of each case may appear to require.

In Levac, the court, relying on Laskin J.A.’s decision in R. v. P.(A.), at para. 15, held that for a document to be admissible under the public documents exception to the hearsay rule, four criteria must be satisfied:

a.   the document must have been made by a public official, that is a pers on whom the duty has been imposed by the public;

b.   the public official must have made the document in the discharge of a public duty or function;

c.   the document must have been made with the intention that it serve as a permanent record; and

d.   the document must be available for public inspection.

An adjudicative function is not a prerequisite for a document to be a public document. A public document means a document that is made for the purpose of the public making use of it, and being able to refer to it: Levac, at para. 117; R. v. P.(A.), at para. 15.”

          A.P. v. L.K., 2021 ONSC 150 (CanLII) at 147-150

“In the proceedings before me, there was relatively little attention paid to principles, concepts and/or doctrines of substantive law that might provide a mechanism for the various forms of relief claimed by the plaintiff.  In that regard:

a.   As noted above, the plaintiff’s statement of claim and notice of motion relating to summary judgment made passing reference to the concepts of constructive trust, resulting trust and promissory estoppel, as well as oblique references to the concept of unjust enrichment; i.e., by references to alleged enrichment of the defendants and a corresponding detriment to the plaintiff for which there was said to be no juristic reason.

b.   The facta filed on behalf of the plaintiff and Kimberly Elg made more explicit reference to the concept of unjust enrichment, albeit with relatively brief comments noting certain general principles addressed by authorities such as Pettkus v. Becker, [1980] 2 S.C.R. 269, and Sorochan v. Sorochan, 1986 CanLII 23 (SCC), [1986] 2 S.C.R. 38.

c.   The parties otherwise were content to focus on underlying factual issues, suggesting that there was little or no dispute in relation to the substantive law that might apply in this case.

For the sake of clarity, (and perhaps for the benefit of the parties), I nevertheless will note my independent familiarity with those potentially relevant principles of substantive law, as week as other related principles, which include the following:

a.   Oral agreements relating to land may be enforced by the court despite their never having been reduced to writing.  That equitable doctrine was developed to avoid the unjust consequences which otherwise might flow from rigid application of legislation such as the Statute of Frauds, R.S.O. 1990, c.S.19, which imposed written requirements on the creation of interests and rights relating to land.  In particular:

The Court of Equity has, from a very early period, decided that even an Act of Parliament shall not be used as an instrument of fraud; and if in the machinery of perpetrating a fraud an Act of Parliament intervenes, the Court of Equity, it is true, does not set aside the Act of Parliament, but it fastens on the individual who gets title under that Act, and imposes upon him a personal obligation, because he applies the Act as an instrument accomplishing fraud: See McCormick v. Grogan (1869), L.R. 4 H.L. 82 (H.L.), at p.97, quoted with approval by our Court of appeal in Re Golden, 2003 CanLII 4764 (ON CA), [2003] O.J. No. 2778 (C.A.), at paragraph 35.

b.   One manifestation of that general equitable doctrine is the more specific equitable “doctrine of part performance”, through which equity can and will hold an ostensible owner of land to an oral promise that another party would acquire a beneficial interest in that land if that other party performed specified acts or obligations, and that other party has fulfilled his or her part of the arrangement.  In that regard:

i.         The genesis and nature of the doctrine of part performance were explained by the House of Lords in the following terms, in Steadman v. Steadman, [1976] A.C. 536 (H.L.), at p.558, quoted with approval by the Supreme Court of Canada in Hill v. Nova Scotia (Attorney General), 1997 CanLII 401 (SCC), [1997] 1 S.C.R. 69, at paragraph 10:

[The doctrine] was evoked when, almost from the moment of passing of the Statute of Frauds, it was appreciated that it was being used for a variant of unconscionable dealing, which the statute itself was designed to remedy.  A party to an oral contract for the disposition of an interest in land could, despite performance of the reciprocal terms by the other party, by virtue of the statute disclaim liability for his own performance on the ground that the contract had not been in writing.  Common Law was helpless.  But Equity, with its purpose of vindicating good faith, and with its remedies of injunction and specific performance, could deal with the situation.  The Statute of Frauds did not make such contracts void but merely unenforceable; and if the statute was to be relied upon as a defence, it had to be specifically pleaded.  Where, therefore, a party to a contract unenforceable under the Statute of Frauds stood by while the other party acted to his detriment in performance of his own contractual obligations, the first party would be precluded by the Court of Chancery from claiming exoneration, on the ground that the contract was unenforceable, from performance of his reciprocal obligations; and the court would, if required, decree specific performance of the contract.  Equity would not, as it was put, allow the Statute of Frauds “to be used as an engine of fraud”.  This became known as the doctrine of part performance – the “part” performance being that of the party who had, to the knowledge of the other party, acted to his detriment in carrying out irremediably his own obligations (or some significant part of them) under the otherwise unenforceable contract.

ii.         In Canada, the view which has won the repeated support of the Supreme Court of Canada is that such unwritten agreements relating to land will be enforced if a claimant can demonstrate acts of part performance “unequivocally, and in their own nature, referable to some such agreement as that alleged”: See, for example: McNeil v. Corbett(1907), 1907 CanLII 45 (SCC), 39 S.C.R. 608; Deglman v. Guaranty Trust Co., 1954 CanLII 2 (SCC), [1954] S.C.R. 725; Brownscombe v. Public Trustee (Administrator of Vercamert Estate), 1969 CanLII 86 (SCC), [1969] S.C.R. 658; and Thompson v. Guaranty Trust Co., 1973 CanLII 161 (SCC), [1974] S.C.R. 1023.

c.   Another manifestation of such equitable intervention to prevent injustice is the court’s recognition of circumstances giving rise to enforceable rights through the concept or doctrine of “proprietary estoppel”, so as to prevent and redress any unconscionable conduct on the part of a landowner.  In that regard:

i.         While proprietary estoppel is a form of promissory estoppel, and it commonly is supposed that estoppel cannot give rise to a cause of action, proprietary estoppel is an exception to that rule.

ii.         The exception was articulated by Lord Denning in Crabb v. Arun District Council(1975), 1 Ch. 179 (Eng.C.A.), and accepted by our Court of Appeal in authorities such as Eberts v. Carleton Condominium No. 396, 2000 CanLII 16889 (ON CA), [2000] O.J. No. 3773 (C.A.), and Schwark v. Cutting, 2010 ONCA 61.

iii.            Pursuant to the doctrine of proprietary estoppel, an equity arises in circumstances where three essential elements are established:

1. 1. 1. 1. 1. 1. 1. 1.    an owner of land induces, encourages or allows a claimant to believe that he or she has or will enjoy some right or benefit over the owner’s property;
                     2.    relying upon that belief, the claimant acts to his or her detriment, to the knowledge of the owner; and
                     3.    the owner then seeks to take unconscionable advantage of the claimant by denying him or her the right or benefit which he or she expected to receive.

d.    The doctrines of part performance and proprietary estoppel are nevertheless only two manifestations of the court’s wider equitable jurisdiction, (repeatedly confirmed and refined by the Supreme Court of Canada), to grant relief pursuant to the modern principle of “unjust enrichment”; i.e., in circumstances where a claimant is able to prove enrichment of another party, and a corresponding deprivation of the claimant, with no juristic reason for the enrichment.   In such circumstances, a successful claimant may be entitled to a monetary remedy or a proprietary remedy, including imposition of a constructive trust: See, for example: Pettkus v. Becker, supra; Sorochan v. Sorochan, supra; Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574; Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980; and Kerr v. Baranow, 2011 SCC 10 (CanLII), [2011] 1 S.C.R. 269. Although the jurisprudence emphasizes that courts seeking to remedy such unjust enrichment should first consider whether a monetary award is sufficient, it also makes clear that the remedy of a proprietary constructive trust may be necessary and appropriate in certain circumstances.  For example, in Kerr v. Baranow, supra, at paragraph 50, Justice Cromwell said this:

The Court has recognized that, in some cases, when a monetary award is inappropriate or insufficient, a proprietary remedy may be required.  Pettkus is responsible for an important remedial feature of the Canadian law of unjust enrichment: the development of the remedial constructive trust.  Imposed without reference to intention to create a trust, the constructive trust is a broad and flexible equitable tool used to determine beneficial entitlement to property. … Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favour. … The equitable principle on which the remedy of constructive trusts rests is broad and general; its purpose is to prevent unjust enrichment in whatever circumstances it occurs.

[Emphasis added.]

e.   Our courts unquestionably also have jurisdiction to declare and enforce “resulting trust” arrangements, whereby an ostensible owner of property is required to hold the beneficial interest in that property for another.  In that regard:

i.         The circumstances giving rise to enforceable “resulting trusts” are varied, and many, (such as “automatic resulting trusts” and “voluntary transfer resulting trusts”), seem clearly irrelevant and inapplicable to the situation at hand; e.g., insofar as there is no suggestion that the plaintiff was the owner of the disputed property prior to the defendants taking title to the disputed property when it was acquired in 2015.

ii.         At most, the plaintiff’s alternative claim to a “resulting trust” in this case seems based on a suggestion that the situation might fall within the court’s recognized jurisdiction to enforce “purchase money resulting trusts”; i.e., a jurisdiction exercised to prevent injustice in situations where a claimant has paid the purchase price for a property, but for some reason has directed that title to the property be registered or taken in another person’s name.  Equity regards such circumstances as giving rise to a rebuttable presumption that the party supplying the purchase money intended to acquire and retain beneficial ownership of the purchased property, despite the arrangements made in relation to the holding of legal title; i.e., a rebuttable presumption that the holder of the legal title was intended to hold the beneficial interest in the property in trust for the party who supplied the relevant purchase money: See A. Oosterhoff and E. Gillese, Text, Commentary and Cases on Trusts, 4^thed., (Scarborough, Carswell, 1992), at pp. 306-307.

iii.            However, the rebuttable presumption of a purchase money resulting trust self-evidently arises only in circumstances where the claimant is shown to have supplied the purchase money for the property at the time of its acquisition. In particular, situations giving rise to a rebuttable presumption of a purchase money resulting trust must be distinguished from those in which a party supplies the purchase money and takes title for himself or herself, but has made an agreement to transfer the property to another if and when that other person pays the purchase price.  The latter situation does not involve a purchase money resulting trust, or give rise to the original purchaser being characterized as a resulting trustee, although it may lead to the original purchaser being obliged to hold the property on an express trust or constructive trust for the party who was promised the property on payment of the purchase price.  See Brown v. Storoschuk, 1946 CanLII 259 (BC CA), [1946] 3 W.W.R. 641 (B.C.C.A.), and Oosterhoff and Gillese, supra, at pp. 308-309.  Even then, it also must be shown that the claimant in fact supplied the purchase money qua purchaser; e.g., as opposed to providing the purchase money as a gift or loan: Ibid, at pp.307-308.”

Elg v. Elg, et al., 2025 ONSC 82 (CanLII) at 26-27

 “In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. These are the steps for the court to take: C.S. v. K.M., 2023 ONCJ 106 (Ont. C.J.):

(a) The first step will be to determine the presumptive date of retroactivity as described in Colucci;

(b) The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion, as described in Michel v. Graydon; and,

(c) The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.

Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair: D.B.S., supra, para. 12.

The framework set out in the leading cases on retroactive child support: D.B.S., Michel v. Graydon and Colucci, all supra, all S.C.C. balances the competing interests of certainty and predictability, with the need for flexibility in a way that incentivizes payment of the right amount of child support when it is due and the timely disclosure of financial information — the linchpin of a just and effective family law system. Rules which create perverse incentives to ignore or postpone parental support obligations are to be firmly rejected in favour of legal standards designed with the fundamental purposes of child support in mind: Colucci, supra, para. 4.

Effective notice is given when the recipient provides some notice of his or her desire to review and adjust child support.  Although effective notice can be as little as broaching the topic in conversation, formal notice is something more, generally taking the form of written correspondence from the recipient or counsel or the commencement of legal proceedings: Wilkinson v. Wilkinson, 2008 ONCJ 96 (Ont. C.J.).

Courts should avoid creating any incentive whatsoever for payor parents to avoid meeting their child support obligations: Michel v. Graydon, supra, para. 17.”

            Wilson v. Johnson, 2024 ONCJ 6 (CanLII) at 26-30

“Courts have been clear that self-help remedies should not be condoned and must be discouraged.  If a parent believes that a court order or separation agreement is no longer in a child’s best interests then their recourse is to apply to the courts. See for example, Blair v. Hamilton,2018 ONSC 7328; Ng v. Charles  2016 ONSC 2946; Phillips v. Phillips, 2021 ONSC 2480.

As the court stated in Fallis v. Decker, 2013 ONSC 5206, at paragraph 26: “Parents 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.”

The parent who engages in self-help tactics despite the best interest of the child will generally raise serious questions about their own parenting skills and judgment. Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII); Clement v. Clement 2010 ONSC 1113 (CanLII).”

MacDonald v. Harris, 2025 ONSC 25 (CanLII) at 38-40

“There is no established test under r. 2(5) of the FLR, or by analogy under r. 37.16 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), which must be applied in considering requests for leave required by court orders made pursuant to these provisions.

The Respondent correctly identifies that he has never been declared a vexatious litigant, pursuant to s. 140(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”). As such, the test found in s. 140(c), of the CJA, which provides that “leave shall only be granted if the court is satisfied that the proceeding is sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding”, is informative in nature only: see Huang v. Braga, 2020 ONCA 645, at para. 16.

Courts tasked with determining leave motions, hold a gate-keeping function. In the context of limitations placed on litigants pursuant to procedural powers under r. 2(5) of the FLR, leave motions should be viewed as screening mechanisms – alive to the important balance between the right to be heard and the prevention of misuse of the court process. Leave should be granted where it is in the overall interests of justice to do so. Determination of the interests of justice should include consideration of the context and merits of the motion, and an overall balancing of interests. More specifically, the court should consider:

1.      The offensive or targeted litigation conduct that compelled the requirement for leave and the need to discourage that conduct;

2.      A preliminary or threshold assessment of the merits of the relief sought by the moving party; and

3.      A balancing of the individual interests of the litigants and the interests of public.”

          Kim v. McIntosh, 2024 ONSC 7257 (CanLII) at 12-14

“During the father’s cross-examination, the mother sought to introduce a series of cheques and other financial records.  The father objected to this evidence as the mother failed to give the required 7-day notice under ss. 35(3) of the Evidence Act, RSO 1990, c. E.23 for this evidence to be adduced at trial.  I reserved my decision on the objection and heard evidence for this objection on a blended voir dire with the evidence at trial.  As set out below, I find that this evidence should be admissible.

Both sides acknowledge that the mother gave no notice as required under ss. 35(3) of the Evidence Act.

Despite a party’s non-compliance with the requirement under ss. 35(3) for notice to introduce business records, the court may, in the circumstances of a trial, exercise its discretion to admit this evidence: Kumsathira v. Pembridge Insurance Company, 2007 ONCA 53 at para 3.  The purpose of the notice requirement under ss. 35(3) is to avoid surprises at trial and ensure that a party knows the case they need to make in preparing for trial.  I add that the most basic obligation in family law is the duty to disclose financial information, and that a party’s failure to abide by this fundamental principle impedes the progress of family litigation, causes delay, and generally acts to the disadvantage of the other party and the administration of justice: Roberts v. Roberts, 2015 ONCA 450 at paras 11-12.  I acknowledge the importance of having relevant and probative evidence before the court so it has the best possible evidentiary record for its consideration.”

          Anthony v. Ogunbiyi, 2024 ONSC 7287 (CanLII) at 8-10

“Section 21.1 of the SLRA allows the court to validate a document that is not a properly signed will. The court can order that the improperly made document is nevertheless valid and effective as the will of a deceased person. The section says:

Court-ordered validity

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.

No electronic wills

(2) Subsection (1) is subject to section 31 of the Electronic Commerce Act, 2000. 2021, c. 4, Sched. 9, s. 5.

Transition

(3) Subsection (1) applies if the deceased died on or after [January 1, 2022] the day section 5 of Schedule 9 to the Accelerating Access to Justice Act, 2021 came into force.

This section allows the court to recognize as a valid will a document that, “sets out the testamentary intentions of a deceased.”

The only limitations on the face of the statute are that the deceased must have died after January 1, 2022 and that the document sought to be recognized as a will cannot be in electronic form.  Counsel did not discuss the effect of s. 21.1(2) or s. 31 of the Electronic Commerce Act, 2000, SO 2000, c 17. The latter section provides that the ECA does not apply to wills. Section 5 of the ECA says that:

A legal requirement that information or a document be in writing is satisfied by information or a document that is in electronic form if it is accessible so as to be usable for subsequent reference.

Without the recognition provided by s. 5 of the ECA, it seems that notes or a draft will stored on counsel’s computer system or a later printout of such an electronic file may not be a “document or writing” for the purpose of s. 21.1. While that issue is not directly before me today, I do need to consider whether I should be granting access to the lawyer’s computer files if the contents of those files are not capable of being recognized as wills under s. 21.1.

No one knows with certainty yet whether there are any limits on the types of documents that might be recognized as wills or what limits may apply.

In Cruz v. Public Guardian and Trustee, 2023 ONSC 3629 (CanLII), I recognized as a valid will under s. 21.1 of the SLRA, a document that the deceased person prepared as a will but failed to have witnessed. The deceased person knew that witnesses were required, but he thought they could sign on later. The document had been carefully kept as the deceased’s will.

In Vojska v Ostrowski, 2023 ONSC 3894 (CanLII), I recognized as a valid will under s. 21.1 of the SLRA, a document that had been prepared as a formal will by a lawyer. It was signed by the deceased person in a formal signing ceremony with the lawyer and another witness. By mistake, the lawyer did not sign the will however.

In Groskopf v. Rogers et al., 2023 ONSC 5312 (CanLII), Hilliard J. recognized as a valid will under s. 21.1 of the SLRA, a “fill-in-the-blanks” form of will document that the deceased person signed but did not date or have witnessed. She kept it in a lock box with other notes about the distribution of her estate.

Recently, in Kertesz v. Kertesz et al., 2023 ONSC 7055 (CanLII) I recognized as a valid will under s. 21.1 of the SLRA, a note prepared by a deceased person who knew his death was imminent. The note was unsigned. But it demonstrated on its face that the deceased person intended it to be a will; that he understood the scope of his assets; he understood the pool of possible beneficiaries; and that he understood how each of the foregoing interrelated.

In each of these cases the court also found that the document being recognized was a “fixed and final” expression of the deceased person’s testamentary intentions as at the time of its creation. In each, there was an imperfectly prepared will. To date, I am unaware of any Ontario decision that goes beyond fixing or ignoring execution errors on documents that, if properly signed, would have been wills.”

          White v. White, 2023 ONSC 7286 (CanLII) at 30-38

“Anticipatory repudiation occurs when a contracting party, “by express language or conduct, or as a matter of implication from what he has said or done, repudiates his contractual obligations before they fall due”: G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), at p. 585. The parties concede that LDGL by its correspondence of October 2004 did just that.

However, an anticipatory repudiation of a contract does not, in itself, terminate or discharge a contract; it depends on the election made by the non-repudiating party: Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] 3 S.C.R. 423, at p. 440; Brown v. Belleville (City), 2013 ONCA 148, 114 O.R. (3d) 561, at para. 42. As Cronk J.A. stated in the latter decision at para. 45:

It appears to be settled law in Canada that where the innocent party to a repudiatory breach or an anticipatory repudiation wishes to be discharged from the contract, the election to disaffirm the contract must be clearly and unequivocally communicated to the repudiating party within a reasonable time. Communication of the election to disaffirm or terminate the contract may be accomplished directly, by either oral or written words, or may be inferred from the conduct of the innocent party in the particular circumstances of the case: McCamus, at pp. 659-61. [Emphasis added.]

In Chitty on Contracts, 28th ed. (London: Sweet and Maxwell, 1999), Vol. 1, at p. 25-012, the authors write:

Acceptance of a repudiation must be clear and unequivocal and mere inactivity or acquiescence will generally not be regarded as acceptance for this purpose. But there may be circumstances in which a continuing failure to perform will be sufficiently unequivocal to constitute acceptance of a repudiation. It all depends on the “particular contractual relationship and the particular circumstances of the case.”

This commentary was accepted by this court in Brown v. Belleville, at para. 48, and by the Nova Scotia Court of Appeal in White v. E.B.F. Manufacturing Ltd., 2005 NSCA 167, 239 N.S.R. (2d) 270, at para. 91.”

Glen Schnarr & Associates Inc. v. Vector (Georgetown) Limited, 2019 ONCA 1012 (CanLII) at 29-32

“Although Jessica abandoned the argument that the higher income in the unanswered Request to Admit should prevail, it is instructive to site the law on point. In Children’s Aid Society of Algoma v F.M., 2021 ONCJ 184 at paragraphs 26-27 the court held:

The Request to Admit is only a litigation device that opens the evidentiary gate to allow entry to the fact that is either admitted or not denied. This is only entry to the pool of potentially admissible evidence however, the fact still has to pass other evidentiary tests to have evidentiary value. It must be relevant. It must be factual. It must be reliable. In this case, there is also the determination of against whom the fact is to be waived. However, those are matters for the trial judge to deal within his or her ultimate decision. From the standpoint of the ruling on admissibility, it is a very easy matter. Any fact on which any denial or refusal to admit is made, regardless of who made it, does not meet the requirement that leads to a deemed admission of the truth of the fact for any evidentiary purpose. The fact will have to be proven to be true by the party seeking its admission into evidence in some other manner, not by way of Request to Admit. [Emphasis added in the original]

Likewise, in Jama v. Basdeo, 2020 ONSC 2922,  where the respondent also failed to respond to the Request to Admit,  the  court concluded:  

 Whenever Ms. Jamas’ own evidence (which is not restricted to her testimony, but includes any evidence adduced by her counsel during trial) contradicts facts set out in Request to Admit, I have not deemed those facts to be admitted by Mr. Basdeo. In those instances, I have made factual determinations based on the totality of the relevant evidence.

The underlying principle in both these cases is well established beyond the context of the operation of this subrule; any finding of fact must be made on the totality of the evidence before the court at trial, including undefended trials.”

              Laundry v. Greystock-Wood, 2023 ONSC 7047 (CanLII) at 36-37

“In Minish v. Timmons, 2021 ONSC 7622, Justice Lacelle refers to the direction provided by the Court of Appeal in Lewi v. Lewi, 2006 CanLII 15446 (ON CA), 2006 CarswellOnt 2892 as it relates to the application of the Child Support Guidelines for children at the age of majority as follows:

46 I also consider how the case law directs me to apply these provisions. The Court of Appeal for Ontario in Lewi v. Lewi provided the following directions:

• • • • • The law presumes that the “standard Guideline approach” of s. 3(2)(a) will be used unless the court considers that approach to be inappropriate (para. 129);
        • It is open to the court to find that the “standard Guideline approach” of s. 3(2)(a) may be appropriate where the child remains living at home but not if the child is away at school for 8 months of the year (para. 138);
        • Both s. 7 and s. 3(2)(b) require the court to consider whether a child of majority age is able to make a contribution to his or her post-secondary education expenses (para. 141);
        • Section 3(2)(b) requires the court to have regard to the “means” of the child. Both capital and income are encompassed by the term “means”. The section requires the court to consider the child’s means in the context of the financial ability of each of the parents to contribute to the support of the child (para. 142).
        • While s. 7 refers in its criteria to the contribution of the child, if any, this does not indicate a greater expectation for the child’s contribution under s. 7 compared to s. 3(2)(b). The court has the discretion under both provisions to decide the amount the child should be expected to contribute (para. 159);
        • As a general rule, the amount of child support that a parent is ordered to pay should be determined on the expectation that a child with means will contribute something from those means towards his or her post-secondary school education. The extent of the contribution expected depends on the circumstances of the case. There is no standard formula under either s. 7 or s. 3(2)(b);
        • Proper concerns in the analysis under s. 7 and 3(2)(b) are the effect of the order on the parents given their financial means; whether the expenses are of a type that both parents would have promoted had the family remained intact; and the preservation of the existing proportion of net disposable income between the parents (para. 149). The means of the children and the means of the parents are to be considered together and balanced (para. 150);
        • The focus of s. 3(2)(b) is, “[n]ot on the payer’s income but rather on the amount of support and its appropriateness having regard to the needs and condition of the children and the financial ability of the spouses to contribute to the children’s support” (para. 155);
        • In fashioning an order applying the broad criteria in s. 3(2)(b), the court may well draw upon the principles of the Guidelines and its experience in applying them. For example, it would be entirely appropriate for the court, under s. 3(2)(b), to consider that the parents should share post-secondary expenses in proportion to their incomes after deducting the contribution, if any, of the child. The evidence upon which the court might conclude it was just and appropriate that the parents should share the expenses in some other proportion would be the same under both provisions (para. 157).

47 Further, it is important to consider the proposed budget for the child’s expenses. Apart from considering the cost of items in the budget, it is important for the court to consider the appropriateness of the expense, having regard to the parties’ present and past circumstances: Jahn–Cartwright v. Cartwright, 2010 ONSC 923 at para. 70.”

Moore v. Lemmon, 2023 ONSC 6735 (CanLII) at 41