REASONS FOR JUDGMENT

SHORE J.:

[1] This is an appeal of the decision of Justice Audet (the "motion judge"), dated November 14, 2024, granting partial summary judgment on the property issues that arose between the parties following the breakdown of their marriage. Specifically, the motion judge dismissed the Appellant's claims for unjust enrichment and an unequal division of net family property, finding there was no genuine issue for trial. Further, the motion judge dismissed the Appellant's cross-motion, except for an order allowing the divorce to issue.

[2] As explained below, the decision of the motion judge contained no error in law and no palpable and overriding error of fact. The decision was well thought out and well reasoned. I would dismiss the appeal, with costs payable by the Appellant.

Background:

[3] The parties were married for 34 years and separated on February 16, 2023. They have three children who are all adults and live independently. The marriage was traditional, in that the Appellant was the primary breadwinner and the Respondent focused on raising the children and managing the household.

[4] The Appellant worked in various capacities for the Federal Government for 34 years and retired in 2021, with a full pension in the range of $180,000 per year.

[5] The Respondent held various part-time jobs during the marriage, including as a wedding dress seamstress, at a quilting store and as a bookkeeper. At the time of the motion, the Respondent was working as a part-time receptionist, earning $17 per hour.

[6] During the marriage, the Respondent was responsible for the day-to-day management of the parties' financial affairs; she would take care of all the banking, manage the parties' income, pay household bills and the children's expenses, manage the parties' credit cards and line of credit, and moved money around as needed to cover the parties' expenses.

[7] However, the Appellant was primarily (if not exclusively) responsible for managing the parties’ investments. He would deposit his yearly bonusses into the parties' joint Canadian Imperial Bank of Commerce ("CIBC") savings account. He would then distribute them into various Tax-Free Savings Accounts ("TFSA"), Registered Retirement Savings Plans ("RRSP") and savings accounts held by the parties (or one of them) at the Royal Bank of Canada ("RBC") and CIBC.

[8] After 34 years of marriage, the parties had accumulated a net worth exceeding five million dollars.

[9] Following separation, the Appellant discovered that the Respondent had made two withdrawals from their joint account, one in the sum of $15,000 and the other in the sum of $1,000, being half the funds in their joint account.

[10] The Appellant retained Lorne Kirsch, a chartered accountant and a certified business valuator to review the parties' finances and bank records for the last seven years of the marriage.

[11] Mr. Kirsch concluded that from his review of the bank statements, there was approximately $465,707 that was missing from the parties' accounts over the last seven and a half years prior to separation. The Appellant therefore alleged that in the years prior to separation, the Respondent was diverting funds from the parties' accounts. In his pleadings, the Appellant made a claim for unjust enrichment and an unequal division of net family property, amongst other claims.

[12] The Respondent brought a motion for summary judgment with respect to the following claims set out in the Application:

(a) An order for an unequal division of the parties' net family properties in favour of the Appellant;

(b) A declaration that the monies held in certain investment accounts be defined as beneficially owned by the Appellant (by way of resulting trust), and excluded from his net family property;

(c) A declaration that the Respondent has been unjustly enriched by the Appellant's contributions to the Respondent's assets, the requested remedy for which was either a constructive or resulting trust interest in up to 50 percent of the Respondent's assets or a monetary award in an amount to be determined by the court.

[13] The Respondent also asked the motion judge to fix the equalization payment owing.

[14] The Appellant disputed the Respondent's motion and brought a motion of his own, for:

(a) An order allowing the divorce to issue;

(b) Exclusive possession of the matrimonial home;

(d) A long list of disclosure;

(e) The return of the two dogs or, alternately, an order for "shared custody" of the dogs; and

(f) A temporary variation of the interim spousal support order in place, based on an imputed income for the Respondent.

[15] The summary judgment motion was granted, except on the issue of the Appellant's entitlement to have certain investment accounts excluded from his net family property. That issue was left to be determined at trial.

[16] On the Appellant’s motion, the motion judge allowed the divorce to issue and partially granted the motion for disclosure. Otherwise, the Appellant's motion was dismissed.

Grounds for Appeal:

[17] The Appellant submits that:

(a) The motion judge erred in summarily dismissing his claim for unjust enrichment and an unequal division of net family property without a trial; and

(b) Erred in dismissing his motion for disclosure.

[18] At the commencement of the appeal, counsel for the Appellant conceded that the order regarding disclosure was interlocutory in nature and not properly before this Court, as leave to appeal had not been sought or obtained. The appeal did not proceed on this issue.

[19] On the remaining issue, the Appellant's position is that:

(a) The motion judge erred in determining that there was no issue for trial;

(b) The motion judge erred in law, by determining the issue of an unequal division of net family property prior to the determination of the equalization of net family property; and

(c) The motion judge erred in fact, by criticizing Mr. Kirsch's report for not taking certain factors or transactions into account, when Mr. Kirsch had in fact considered those factors and transactions.

Standard of Review:

[20] The standard of review for a judicial appeal is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, extricable legal principles are subject to the correctness standard and with respect to the application of the correct legal principles to the evidence, the standard of review is palpable and overriding error.

Analysis:

This is an Appropriate Case for Summary Judgment:

[21] The Appellant submits that the motion judge erred in determining that there were no genuine issues for trial. The Appellant submits that a trial is necessary to determine the quantum of misdirected funds by the Respondent and whether the Respondent’s spending was reckless. The Appellant relies on there being “no independent verification provided by the Respondent but only her interpretation of the data from the bank, without sharing complete bank statements”. Further, the Appellant asserts that there are “clear credibility issues in this case” requiring a trial. The Appellant submits that should this matter go to trial, there exists a possibility that the Appellant's claims will succeed.

[22] The motion judge correctly addresses each of these grounds in the reasons.

[23] Starting at paragraph 23 of the decision, the motion judge correctly and succinctly set out the considerations and legal principles for determining whether to proceed with a summary judgment motion, as outlined in the decision, Gough v. Gough, 2019 ONSC 5441.

[24] The motion judge then considered whether this was an appropriate case for summary judgment. Starting at paragraph 31, the motion judge concludes that:

[31] …The financial disclosure already provided in this case far exceeds what is necessary and proportional for the Court to fairly and efficiently make relevant findings of facts. I find that the extensive financial information before me, which consists of hundreds of pages of financial records, a forensic audit [Kirsh Report] which reviewed the parties' banking history over the seven-and-a-half years preceding their separation, a detailed and comprehensive Profit and Loss Document and Balance Sheet Document prepared by Ms. Enei, as well as lengthy affidavits from the parties, allows me to fairly and efficiently make findings of fact and law in this case, and there is nothing to be gained by deferring the hearing to a trial.

[32] I find that it is appropriate to grant partial summary judgment in this case on property claims that simply do not require a trial. A final adjudication of those issues will significantly reduce the cost of this litigation and allow for a much more expeditious process on the balance of the disputed issues. There is no concern here that partial summary judgment might result in inconsistent findings between myself and the trial judge.

[25] Further, at paragraph 60, when considering the issue of the unequal division of net family property, the motion judge concludes:

[60] There are no credibility issues to be decided at trial on these issues. The documentary evidence provided, which includes seven years' worth of bank and credit card statements, bank drafts, invoices, receipts, cheques and transaction confirmations (as listed in exhibit "I" of Ms. Enei's March 25, 2024 affidavit), and which have been summarized in a forensic report, a Profit and Loss Document, a Balance Sheet and several detailed reconciliations found in Ms. Enei's evidence, speaks for itself.

[26] The motion judge found that a trial was not necessary to make findings of fact with respect to:

(a) the use of funds over a seven-and-a-half-year period prior to separation;

(b) to determine if any of the funds were misdirected;

to ground a finding of unconscionability, which is a necessary finding to make an order under s.5(6) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”).

[27] The motion judge had ample evidence, including documentation, to make the findings on the summary judgment motion.

[28] I find no legal or other appealable error in the motion judge's analysis and application of the law and in the finding that this was an appropriate case for summary judgment.

No Palpable and Overriding Errors of fact regarding the Kirsch evidence:

[29] The Appellant submits that the judge made a palpable and overriding error of fact when finding fault with the report prepared by Mr. Kirsch. Specifically, the Appellant submits that the motion judge criticized the report for failing to consider various expenses incurred by the parties, when Mr. Kirsch accounted for many of these expenses in the report.

[30] The Appellant's claim for an unequal division of net family property was dismissed by the motion judge. Relying on the report from Mr. Kirsch, the Appellant submitted that over the seven and a half years preceding the parties' separation, the Respondent redirected at least $465,707 from the parties' joint account to her own personal account. Therefore, he submits that he is entitled to an unequal division of the parties' net family property.

[31] The motion judge found that the Appellant could not prove, on a balance of probabilities, that the Respondent diverted large sums of money or spent so excessively during the marriage, that it would be unconscionable for her to receive half of the parties' net family property acquired during their 34 years of marriage.

[32] The motion judge took issue with Mr. Kirsch’s overall approach, and preferred the approach taken by the Respondent. If there are mistakes with some individual items, such mistakes do not reach the high threshold of being palpable and overriding. The judge's decision is clear and concise as to why the Respondent's calculations were accepted over that of the Appellant and Mr. Kirsch.

[33] As set out starting at paragraph 52 of the decision:

[52] To counter the conclusions found in Mr. Kirsch's forensic report, Ms. Enei undertook an exhaustive reconciliation of all bank and credit card accounts held by the parties (or either one of them), based on all the monthly statements exchanged, over the course of those seven and a half years. She produced a detailed and comprehensive Profit and Loss Document, as well as a Balance Sheet Document to address the sums of money that have been transferred between savings accounts during that period, but not expended.

[53] Ms. Enei is not an expert nor is the product of her work an expert report. It is a compilation of all the transactions that can be found in the hundreds of bank statements produced for that seven- year period. It was served on Mr. Enei well in advance of the motion hearing, and Mr. Enei had every opportunity to have it reviewed and critiqued by Mr. Kirsch or anyone else of his choosing. He did not.

[54] What is shown in the Profit and Loss document is that other than the amount of $1,617, all monies spent by Ms. Enei are accounted for.

[56] Finally, Ms. Enei provided a detailed reconciliation of all the monies allegedly "diverted" to her personal RBC account from the parties' joint RBC account or various investment accounts. All monies transferred to her personal RBC account have been accounted for (to the cent), and documentary evidence of the way they were used was also provided (paras. 52-55 of her March 25, 2024 affidavit).

[57] In her reply affidavit sworn on April 8, 2024, Ms. Enei provides a detailed response to all the significant amounts that Mr. Enei claims to be unaccounted for.

[34] The motion judge concludes that:

[62] Although it was entirely unreasonable for Mr. Enei to ask Ms. Enei to account for every single dollar spent over the last seven years of the parties' marriage, Ms. Enei did just that. She provided cogent evidence accounting for every single dollar spent by her over those past seven years (except for an amount of less than $2,000). Other than bare allegations to that effect made by Mr. Enei, there is simply no evidence supporting Mr. Enei's claim that Ms. Enei spent excessively, or that she diverted large sums of money anywhere.

[35] The motion judge found there was no evidence that satisfied the high threshold of unconscionability required to allow for an unequal division of net family property. An expert report was not required or necessary to reconcile the bank statements and to trace the use and flow of funds by the family.

[36] The judge preferred the approach taken by the Respondent over that of Mr. Kirsch and explained the reasons why Ms. Enei's approach was preferable.

[37] I find no palpable or overriding error in the judge's finding of facts or her application of the facts to the law on this issue.

No errors of law regarding equalization:

[38] The Appellant submits that the motion judge erred in determining the issue of unequal division of net family property, prior to the determination of the equalization payment, which was left to be determined at trial. The Appellant submits this was an error of law.

[39] The Appellant relies on the Court of Appeal decision in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, where the court held that a determination under s.5(6) of the FLA can only be made after the usual equalization payment is calculated and not on a pleadings motion: para. 33.

[40] In Frick, the motion judge struck a claim for unequal division because the pleadings did not contain a sufficient cause of action, and because there was no evidence that the husband's affair had a significant effect on his net family property. The Court of Appeal disagreed with the decision. The court held that the motion judge erred in striking the wife’s claim under r. 16(2) of the Family Law Rules, O. Reg. 114/99, because there was no motion for summary judgment before the court. The wife in that case could not have known that she was required to respond to the test for summary judgment. Further, the Court found that "the motion judge was incorrect to eliminate the wife's s.5(6) claim at the pleadings stage."(emphasis added): at para. 30.

[41] The case before this court is very different. On the issue of fixing the equalization payment, the motion judge made the following finding:

[83] It appears the value of the parties' debts and assets at the relevant dates are not in dispute. However, given my decision immediately above, it is not possible for the Court to rule on the issue of equalization at this time.

[42] To determine a claim under s.5(6), a court must determine if the equalization payment is "unconscionable" having regard to the factors of the case. To do a proper analysis under s.5(6), the equalization payment needs to be known.

[43] However, in this case, the equalization payment was known, except for a $65,000 difference to one of the parties. The outstanding issue related to the Appellant's claim for a beneficial interest in inherited money that he placed into an account in the Respondent's name. The motion judge concluded that the determination of this issue required credibility findings that ought to be determined at trial and dismissed the Respondent's summary judgment motion on this claim. The money in question amounted to approximately $130,000 or a $65,000 swing to the equalization payment owing between the parties. The parameters of the equalization payment were known but for the $65,000 issue, which does not change the outcome of the unconscionability analysis in this case. This case is therefore compatible with the decision in Frick and the general principle above.

[44] The motion judge reviewed the Appellant's arguments and evidence in this regard and concluded that even if she were to accept the Appellant's allegations, considering all of the facts of the case, the Appellant would not meet the exceptionally high threshold of "unconscionability" under s.5(6) of the FLA.

[45] I find no error of law in the motion judge's decision.

Costs:

[46] The parties agreed that costs would be paid to the successful party in the sum of $7,500, inclusive.

Disposition:

[47] I would therefore dismiss the appeal, with costs paid by the Appellant to the Respondents in the sum of $7,500 inclusive.

Shore J.

I agree _______________________________

Sachs J.

I agree _______________________________

Matheson J.

Released: November 20, 2025

CITATION: Enei v. Enei, 2025 ONSC 6279

DIVISIONAL COURT FILE NO.: DC-24-00002947-0000

DATE: 20251120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, MATHESON, SHORE, JJ.

BETWEEN:

Giorgio Mirro Enei

Appellant

– and –

Tamara Janice Enei (nee Dover)

Respondent

Respondent REASONS FOR JUDGMENT

Shore J.

Released: November 20, 2025

Giorgio Mirro Enei v. Tamara Janice Enei, 2025 ONSC 6279

Case Summary

REASONS FOR JUDGMENT

Background:

Grounds for Appeal:

Costs:

Disposition:

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 2

Legislation 2